International Business Machines Corporation

Patent Trials and Appeals Board

Jun 19, 2020

2020000142 (P.T.A.B. Jun. 19, 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.
15/138,535 04/26/2016 Akram Bou-Ghannam AUS920150141US2 2088
58919 7590 06/19/2020
TERRILE, CANNATTI & CHAMBERS, LLP - IBM SV
PO BOX 203518
AUSTIN, TX 78720
EXAMINER
CHEN, WENREN
ART UNIT PAPER NUMBER
3689
NOTIFICATION DATE DELIVERY MODE
06/19/2020 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):
USPTO@dockettrak.com
tmunoz@tcciplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte AKRAM BOU-GHANNAM, KALMAN GYIMESI, and
JENNY S. LI
Appeal 2020-000142
Application 15/138,535
Technology Center 3600
BeforeROBERT E. NAPPI, LARRY J. HUME, AND JASON J. CHUNG,
Administrative Patent Judges.
HUME, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision rejecting claims 1–6, which are all rejections pending in
the application. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM the rejection of claims 1–6.

1 We use the term “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as the assignee,
International Business Machines Corporation. Appeal Br. 1.
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STATEMENT OF THE CASE2
The claims are directed to a system and method for dynamic
discovery and enhancements of diagnostic rules. See Spec. (Title). In
particular, Appellant’s disclosed embodiments and claimed invention
“relate[] to information handling systems. More specifically, embodiments
of the invention relate to dynamic discover and enhancements of diagnostic
rules. Spec. ¶ 1.
Related Appeal
This application is a continuation under 35 U.S.C. § 120 of related
U.S. Application Serial No. 14/799,082, Appeal No. 2020-000128, in which
we affirmed the Examiner’s rejections in a Decision mailed May 15, 2020.
Exemplary Claims
Claims 1 and 3, reproduced below, are representative of the subject
matter on Appeal (italicized emphases and bracketed labeling added to
contested prior-art limitations; underlined emphasis added to contested
limitations under 35 U.S.C. § 112):
1. A computer-implementable method for performing
a complex asset analysis operation within a complex asset
analysis environment, the complex asset analysis environment
comprising a plurality of crowd sourced complex assets and a
complex asset analysis system, the plurality of crowd sourced

2 Our decision relies upon Appellant’s Appeal Brief (“Br.,” filed
June 17, 2019); Examiner’s Answer (“Ans.,” mailed July 18, 2019); Final
Office Action (“Final Act.,” mailed Feb. 15, 2019); and the original
Specification (“Spec.,” filed Apr. 26, 2016) (claiming benefit as a
continuation application of US 14/799,082, filed July 14, 2015). Appellant
did not file a Reply Brief in response to the factual findings and legal
conclusions in the Examiner’s Answer.
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complex assets and the complex asset analysis system
communicating via a network, comprising:
[a] receiving crowdsourced data from the plurality of
crowd sourced complex assets via the network, each of the
plurality of crowd sourced complex assets comprising a
respective motor vehicle, each of the plurality of crowd sourced
complex assets comprising a respective data collection agent,
the respective data collection agent providing respective data
to a complex asset analysis system,
the crowdsourced data being received via a
crowdsourcing operation, the crowdsourcing operation
comprising obtaining the crowdsourced data by soliciting
contributions from a group of complex assets,
[b] the crowdsourced data corresponding to a common
information model, the crowdsourced data specifying a
configuration of a complex asset of the plurality of crowd
sourced complex assets, a snap shot of asset performance
parameters during problems of the complex asset and
associated maintenance and repair experience of the complex
asset;
aggregating the crowdsourced data received from the
plurality of crowd sourced complex assets via the complex asset
analysis system;
performing the complex asset analysis operation based
upon the crowdsourced data received from the plurality of
crowd sourced complex assets, the complex asset analysis
operation providing an information brokerage function for a
community of complex assets by managing shared information
from the plurality of crowd sourced complex assets; and,
controlling at least one complex asset to control operator
actions based upon individual complex asset data and
crowdsourced data relating to a particular type of complex
asset.
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3. The method of claim 1, wherein:
each of the plurality of complex assets register respective complex
asset data and subscribe for content notifications based on a type and
configuration of the complex asset.
REFERENCES
The prior art relied upon by the Examiner as evidence is:
Name Reference Date
McClellan et al. (“McClellan”) US 2008/0294690 A1 Nov. 27, 2008
Koch US 2014/0277902 A1 Sept. 18, 2014
REJECTIONS3
R1. Claims 1–6 stand rejected under 35 U.S.C. § 112(a)4 as failing
to comply with the written description requirement. Final Act. 3.
R2. Claims 1–6 stand rejected under 35 U.S.C. § 112(b) as being
indefinite. Final Act. 6; see n.4.
R3. Claims 1, 2, and 4–6 stand rejected under 35 U.S.C.
§§ 102(a)(1) and 102(a)(2) as being anticipated by Koch. Final Act. 8.

3 In the Final Action, the Examiner withdrew an objection to the Drawings
and the rejection of claims 1–6 under 35 U.S.C. § 101, and added an
objection to the Specification. Final Act. 2, 3. To the extent the objection to
the Specification bears on the rejections under 35 U.S.C. § 112, the
objection is before us on Appeal.
4 Although the Examiner alternatively rejects the claims under pre-AIA 35
U.S.C. § 112, first paragraph (Final Act. 3) and pre-AIA 35 U.S.C. § 112,
second paragraph (Final Act. 6), we note the effective filing date of the
present application, July 14, 2015, dictates that provisions of the AIA are in
effect.
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R4. Claim 3 stands rejected under 35 U.S.C. § 103 as being
unpatentable over the combination of Koch and McClellan. Final Act. 14.
CLAIM GROUPING
Based on Appellant’s arguments (Br. 2–7) and our discretion under 37
C.F.R. § 41.37(c)(1)(iv), we decide the appeal of written description
Rejection R1 of claims 1–6 on the basis of representative claim 1; we decide
the appeal of indefiniteness Rejection R2 of claims 1–6 on the basis of
claim 1; and we decide the appeal of anticipation Rejection R3 of claims 1,
2, and 4–6 on the basis of representative claim 1. We address obviousness
Rejection R4 of claim 3, infra.
ISSUES AND ANALYSIS
In reaching this decision, we consider all evidence presented and all
arguments actually made by Appellant. To the extent Appellant has not
advanced separate, substantive arguments for particular claims, or other
issues, such arguments are waived. 37 C.F.R. § 41.37(c)(1)(iv).
We agree with particular arguments advanced by Appellant with
respect to written description Rejection R1 and indefiniteness Rejection R2
of claims 1–6, and we do not sustain the rejections, as discussed below.
However, we disagree with Appellant’s arguments with respect to
anticipation Rejection R3 of claims 1, 2, and 4–6 and obviousness Rejection
R4 of claim 3 and, unless otherwise noted, we incorporate by reference
herein and adopt as our own: (1) the findings and reasons set forth by the
Examiner in the action from which this appeal is taken, and (2) the reasons
and rebuttals set forth in the Examiner’s Answer in response to Appellant’s
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arguments. We highlight and address specific findings and arguments
regarding claims 7 and 9 for emphasis as follows.
1. § 112(a) Written Description Rejection R1 of Claims 1–6
Issue 1
Appellant argues (Br. 2–4) the Examiner’s rejection of claim 1 under
35 U.S.C. § 112(a) as lacking written description support is in error. These
contentions present us with the following issue:
Did the Examiner err in finding the originally filed disclosure fails to
provide adequate written description support for the limitation of
“controlling at least one complex asset to control operator actions based
upon individual complex asset data and crowdsourced complex asset data
relating to a particular type of complex asset” because, allegedly, the
Specification does not describe how that particular step is performed?
Principles of Law
The test for compliance with the written description requirement is
“whether the disclosure of the application relied upon reasonably conveys to
those skilled in the art that the inventor had possession of the claimed
subject matter as of the filing date.” Ariad Pharm., Inc. v. Eli Lilly & Co.,
598 F.3d 1336, 1351 (Fed. Cir. 2010) (en banc). “[T]he level of detail
required to satisfy the written description requirement varies depending on
the nature and scope of the claims and on the complexity and predictability
of the relevant technology.” Id.
In contrast, “[t]he test of enablement is whether one reasonably skilled
in the art could make or use the invention from the disclosures in the patent
coupled with information known in the art without undue experimentation.
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U.S. v. Telectronics, Inc., 857 F.2d 778, 785 (Fed. Cir. 1988) (emphasis
added).
Analysis
In rejecting claim 1 as lacking written description support for the
contested limitation identified above, the Examiner states the Specification
in paragraph 57 “does not describe how that is performed.” Final Act. 3.
Further, “there are no specifics on how the step of controlling at least one
complex asset to control operator action based upon at least one of
individual complex asset data and crowdsourced complex asset data relating
to a particular type of complex asset is actually performed. The
Specification does not explain how the data is actually used to control the
complex asset and the operator action.” Final Act. 4.
In response, Appellant contends:
A review of the application as filed reveals that Applicant
describes controlling at least one complex asset to control
operator actions based upon individual complex asset data and
crowdsourced complex asset data relating to a particular type of
complex asset. (See application, e.g., paragraphs [0057], [0058]
– [0066]; Figure 3 and 4).
Br. 3. Appellant further quotes paragraph 57 of the Specification in support
of their argument and, in particular, highlights a portion of that paragraph
that discloses, in pertinent part, “certain embodiments . . . can predict and
diagnose machine failures as well as encourage adjustment of operator
actions that optimize asset usage. . . .[and] the complex asset analysis
system 301 can provide certain controls over the complex asset to adjust
the operator actions. Id. (quoting Spec. ¶ 57).
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After review of the cited paragraphs of the Specification, we are
persuaded by Appellant’s argument that the originally-filed disclosure
provides adequate written description support for the contested limitation.
Moreover, we disagree with the Examiner’s finding as it relates to written
description support, because it appears that the Examiner has conflated the
requirements for written description support with that for enablement. See
Final Act. 3–4.
Accordingly, we do not sustain the Examiner’s written description
Rejection R1 under 35 U.S.C. § 112(a) of claim 1, and claims 2–6 which fall
therewith. See Claim Grouping, supra.
2. § 112(b) indefiniteness Rejection R2 of Claims 1–6
Issue 2
Appellant argues (Br. 5) the Examiner’s rejection of claim 1 under 35
U.S.C. § 112(b) as being indefinite is in error. These contentions present us
with the following issue:
Did the Examiner err in finding claim 1 is indefinite because the
recitation of “controlling at least one complex asset to control operator
actions based upon individual complex asset data and crowdsourced
complex asset data relating to a particular type of complex asset” contains
unclear antecedent basis for the recitation of “individual complex asset data”
and “crowdsourced data relating to a particular type of complex asset?”
Principles of Law
We apply the indefiniteness test approved by In re Packard, 751 F.3d
1307 (Fed. Cir. 2014) (per curiam): “A claim is indefinite when it contains
words or phrases whose meaning is unclear,” and “claims are required to be
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cast in clear–as opposed to ambiguous, vague, indefinite–terms.” See
Packard, 751 F.3d at 1310, 1313; Ex parte McAward, Appeal No. 2015-
006416 (PTAB Aug. 25, 2017) (precedential) at *8–11 (explaining because
of different approaches to indefiniteness before the PTAB and the courts, the
PTAB continues to follow Packard after the Supreme Court’s Nautilus, Inc.
v. Biosig Instruments, Inc., 572 U.S. 898 (2014) decision).
[W]hen the USPTO has initially issued a well-grounded
rejection that identifies ways in which language in a claim is
ambiguous, vague, incoherent, opaque, or otherwise unclear in
describing and defining the claimed invention, and thereafter
the applicant fails to provide a satisfactory response, the
USPTO can properly reject the claim as failing to meet the
statutory requirements of § 112(b).
Packard, 751 F.3d at 1311.
Further, we give pending claims “their broadest reasonable
interpretation consistent with the specification” and “in light of the
specification as it would be interpreted by one of ordinary skill in the art.”
In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004).
Analysis
With respect to indefiniteness of the contested limitations, the
Examiner concludes:
It is unclear whether if “individual complex asset data” and
“crowdsourced data relating to a particular type of complex
asset” are the same as the “receiv[ed] crowdsourced data from
the plurality of crowd sourced complex assets” of the first
limitation or new/different set of data (“individual complex
asset data” and “crowdsourced data relating to a particular type
of complex asset”). If these are new and different set of data
(“individual complex asset data” and “crowdsourced data
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relating to a particular type of complex asset”), it is unclear how
this step is performed in relation with the previous steps.
Final Act. 6–7.
Appellant responds by contending:
These terms refer to different data. This difference can
specifically be seen in the element “controlling at least one
complex asset to control operator actions based upon individual
complex asset data and crowdsourced data relating to a
particular type of complex asset” (emphasis added).
Specifically, the term “individual complex asset data” is
discussed at Paragraph [0057] of the application as filed and the
term “crowdsourced data” is discussed at Paragraph [0052] of
the application as filed.
Br. 5 (emphasis omitted).
We agree with Appellant that the recited terms refer to different data,
and further note the contested terms represent the first instance or recitation
of these specific limitations in claim 1. We further determine that the
Examiner has not shown the meaning of the claims are unclear to one skilled
in the art. See Packard, 751 F.3d at 1310.
Accordingly, we do not sustain the Examiner’s Rejection R2 of
claims 1–6 for indefiniteness.
3. §§ 102(a)(1) and 102(a)(2) anticipation Rejection R3 of Claims 1–6
Issue 3
Appellant argues (Br. 8) the Examiner’s rejection of claim 1 under 35
U.S.C. §§ 102(a)(1) and 102(a)(2) as being anticipated by Koch is in error.
These contentions present us with the following issues:
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Did the Examiner err in finding Koch discloses “[a] computer-
implementable method for performing a complex asset analysis operation
within a complex asset analysis environment, the complex asset analysis
environment comprising a plurality of crowd sourced complex assets and a
complex asset analysis system, the plurality of crowd sourced complex
assets and the complex asset analysis system communicating via a network,”
that includes inter alia, the limitations of:
[a] receiving crowdsourced data from the plurality of
crowd sourced complex assets via the network, each of the
plurality of crowd sourced complex assets comprising a
respective motor vehicle, each of the plurality of crowd sourced
complex assets comprising a respective data collection agent,
the respective data collection agent providing respective data to
a complex asset analysis system;
wherein
[b] the crowdsourced data corresponding to a common
information model, the crowdsourced data specifying a
configuration of a complex asset of the plurality of crowd
sourced complex assets, a snap shot of asset performance
parameters during problems of the complex asset and associated
maintenance and repair experience of the complex asset,
as recited in claim 1?
Principles of Law
Anticipation of a claim under 35 U.S.C. § 102 occurs when each
claimed element and the claimed arrangement or combination of those
elements is disclosed, inherently or expressly, by a single prior art reference.
Therasense, Inc. v. Becton, Dickinson & Co., 593 F.3d 1325, 1332 (Fed. Cir.
2010). A reference inherently discloses an element of a claim “if that
missing characteristic is necessarily present, or inherent, in the single
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anticipating reference.” Schering Corp. v. Geneva Pharms., 339 F.3d 1373,
1377 (Fed. Cir. 2003) (citation omitted) (emphasis added). “Inherency,
however, may not be established by probabilities or possibilities. The mere
fact that a certain thing may result from a given set of circumstances is not
sufficient.” Therasense, 593 F.3d at 1332 (citing Cont’l Can Co. USA, Inc.
v. Monsanto Co., 948 F.2d 1264, 1269 (Fed. Cir. 1991)).
Analysis
The Examiner provides a detailed mapping of the contested
limitations [a] and [b] above to the Koch reference. See Final Act. 8–10
(citing Koch at multiple paragraphs, including claims 1 and 6 of Koch, and
Fig. 1).
Limitation [a]: “receiving”
With respect to limitation [a], Appellant contends:
[T]he examiner cites to a portion of Koch which discloses three
crowdsourcing modules (a community diagnostics module 132,
a community road health module 134 and a community driver
health module 136) (see e.g., Koch, Figure 1 and Paragraph
[0021]) as well as a portion of Koch which discloses that in-
vehicle devices can report information to a vehicle management
system 110 (see e.g., Paragraph [0022]). However, it is
respectfully submitted that the claimed respective data
collection agents which provide respective data to the complex
asset analysis system are patentably distinct from the in-vehicle
devices disclosed by Koch.
Br. 5.
Appellant further argues, “nowhere within Koch is there any
disclosure or suggestion of receiving crowdsourced data from the plurality
of crowd sourced complex assets via the network, each of the plurality of
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crowd sourced complex assets comprising a respective motor vehicle, each
of the plurality of crowd sourced complex assets comprising a respective
data collection agent, the respective data collection agent providing
respective data to the complex asset analysis system, as required by
claim 1.” Br. 6.
We are not persuaded by Appellant’s allegations because mere
attorney 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); and Ex parte Belinne, No. 2009-004693, slip op. at 7–8
(BPAI Aug. 10, 2009) (informative), available at https://www.uspto.gov/
sites/default/files/ip/boards/bpai/decisions/inform/fd09004693.pdf. See 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.”). Arguments not made are therefore waived. See 37 C.F.R.
§ 41.37(c)(1)(iv).
Limitation [b]: Crowdsourced Data Correspond[s] to a Common
Information Model
Similarly, with respect to limitation [b], Appellant contends:
[T]he examiner cites to portions of Koch which disclose
collecting summarizing characteristics of fleet applications as a
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list where variables are annotated in time (see e.g., Koch,
Paragraph [0085]). However, it is respectfully submitted that
crowdsourced data which corresponds to a common
information model and which specifies a configuration of a
complex asset of the plurality of crowd sourced complex assets,
a snap shot of asset performance parameters during problems of
the complex asset and associated maintenance and repair
experience of the complex asset is are patentably distinct from
the list of summarizing characteristics disclosed by Koch.
Accordingly, nowhere within Koch, taken alone or in
combination, is there any disclosure or suggestion of the
crowdsourced data corresponding to a common information
model, the crowdsourced data specifying a configuration of a
complex asset of the plurality of crowd sourced complex assets,
a snap shot of asset performance parameters during problems of
the complex asset and associated maintenance and repair
experience of the complex asset, all as required by claim 1.
These deficiencies of Koch are not cured by McClellan.
Br. 6 (emphasis added).
Again, we disagree with Appellant’s contentions, which amount to a
general allegation that the cited prior art does not disclose the disputed
limitation [b], as indicated above, for example, by the italicized portion of
Appellant’s argument on page 6 of the Brief. The Examiner makes further
findings in the Answer (6–9) which Appellant does not rebut by filing a
Reply Brief.
Therefore, based upon the unrebutted findings above, on this record,
we are not persuaded of error in the Examiner’s reliance on the cited prior
art to disclose the disputed limitation of claim 1, nor do we find error in the
Examiner’s resulting finding of anticipation.
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Accordingly, we sustain the Examiner’s anticipation rejection of
independent claim 1, and grouped claims 2–6 that fall therewith. See Claim
Grouping, supra.
4. § 103 Rejection R4 of Claim 3
Issue 4
Appellant argues (Br. 7) the Examiner’s rejection of claim 3 under 35
U.S.C. § 103 as being obvious over the combination of Koch and McClellan
is in error. These contentions present us with the following issue:
Did the Examiner err in finding the cited prior art combination teaches
or suggests the method of claim 1, wherein “each of the plurality of complex
assets register respective complex asset data and subscribe for content
notifications based on a type and configuration of the complex asset,” as
recited in claim 3?
Analysis
The Examiner cites McClellan at paragraphs 92 through 99 as
teaching or suggesting plural recited vehicle (complex asset) registrations.
Final Act. 14; Ans. 10.
Appellant argues “nowhere within the cited portions of McClellan
(nor anywhere else in McClellan) is there any disclosure or suggestion of
each of the plurality of complex assets register respective complex asset
data, much less subscribing for content notifications based on a type and
configuration of the complex asset, as required by claim 3.” Br. 7 (emphasis
omitted).
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In the Answer (9), the Examiner identifies the conclusory nature of
Appellant’s argument, and further explains the rejection with respect to the
disclosure of McClellan, and cites “para[graphs] [0017], [0046], [0048],
[0066], [0072] [for] disclos[ing] transmitting of subscribed notification
based on driver performance which comprising vehicle type and monitored
configuration (i.e. speed, acceleration, impact, accident).” Ans. 10. Again,
Appellant does not rebut the Examiner’s additional findings by filing a
Reply Brief.
Therefore, based upon the unrebutted findings above, on this record,
we are not persuaded of error in the Examiner’s reliance on the cited prior
art combination to teach or suggest the disputed limitations of claim 3, nor
do we find error in the Examiner’s resulting conclusion of obviousness.
Accordingly, we sustain the Examiner’s obviousness Rejection R4 of
dependent claim 3.
CONCLUSIONS
(1) The Examiner erred with respect to written description
Rejection R1 of claims 1–6 under 35 U.S.C. § 112(a), and we do not sustain
the rejection.
(2) The Examiner erred with respect to indefiniteness Rejection R2
of claims 1–6 under 35 U.S.C. § 112(b), and we do not sustain the rejection.
(3) The Examiner did not err with respect to anticipation Rejection
R3 of claims 1, 2, and 4–6 under 35 U.S.C. § 102(a)(1) or § 102(a)(2), and
we sustain the rejection.
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(4) The Examiner did not err with respect to obviousness Rejection
R4 of claim 3 under 35 U.S.C. § 103 over the cited prior art combination of
record, and we sustain the rejection.
Because we have affirmed at least one ground of rejection with
respect to each claim on appeal, we affirm the Examiner’s decision. See 37
C.F.R. § 41.50(a)(1).
DECISION SUMMARY
Claims
Rejected
35 U.S.C.
§
Basis /
References Affirmed Reversed
1–6 112(a)
Written
Description 1–6
1–6 112(b) Indefiniteness 1–6
1, 2, 4–6 102(a)(1) / 102(a)(2)
Anticipation
Koch 1, 2, 4–6
3 103
Obviousness
Koch, McClellan 3
Overall
Outcome 1–6
FINALITY AND RESPONSE
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). See 37
C.F.R. § 41.50(f).
AFFIRMED