International Business Machines Corporation

Patent Trials and Appeals Board

Jul 22, 2020

2019006996 (P.T.A.B. Jul. 22, 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.
13/948,713 07/23/2013 Martin Mevissen YOR920121025US1
(29598)
8594
48233 7590 07/22/2020
SCULLY, SCOTT, MURPHY & PRESSER, P.C.
400 GARDEN CITY PLAZA
SUITE 300
GARDEN CITY, NY 11530
EXAMINER
ROTARU, OCTAVIAN
ART UNIT PAPER NUMBER
3624
NOTIFICATION DATE DELIVERY MODE
07/22/2020 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):
IBMPAIRENotify@ssmp.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARTIN MEVISSEN, SUSARA VAN DEN HEEVER, and
OLIVIER VERSCHEURE
Appeal 2019-006996
Application 13/948,713
Technology Center 3600
Before MICHAEL J. STRAUSS, IRVIN E. BRANCH, and
SCOTT RAEVSKY, Administrative Patent Judges.

RAEVSKY, Administrative Patent Judge.

DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the
Examiner’s decision to reject claims 1, 3, 4, 6, 7, 9, 10, 16, 18, 19, and 21–
23.1 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42(a). Appellant identifies International Business Machines
Corporation as the real party in interest. Appeal Br. 2.
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CLAIMED SUBJECT MATTER
The claims relate to guiding uses in optimization-based planning
under uncertainty. Spec., Abstr. Claim 1, reproduced below, is illustrative
of the claimed subject matter:
1. A computer-implemented method of using computer
generated interactive displays to guide a user in an optimization
based planning process, the method comprising:
identifying one or more characterizations of a defined
process;
generating an existing set of plans P based on the one or
more characterizations, including creating a deterministic
optimization model for a specified problem, and solving the
model for each of a plurality of input data scenarios and each of
a plurality of data ranges to provide a plurality of solutions of
the model, wherein each of the solutions of the model is one of
the plans of the existing set of plans P;
using a computer system to use solution data to guide the
user in the planning process using interactive graphical
displays, including comparing the plans of the set of plans,
choosing one of the plans of the set of plans, defining new
scenarios, and creating new plans, including:
using the existing set of plans P as input and
finding a new plan p, based on specified differences
between said new plan p and the existing set of plans P,
including identifying an added constraint to improve said
existing set of plans P;
analyzing said new plan p to determine whether
said new plan p satisfies defined criteria;
when said new plan p satisfies the defined criteria,
adding the new plan p to the existing set of plans P;
performing an interactive guidance procedure to
reduce the plans;
using the computer system to visualize a
comparison of a plurality of the plans of said existing set
of plans P, including generating an interactive visual
display on a computer video screen showing visualizations
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representing said plurality of the plans of said existing set
of plans P, including
generating, by using interactive graphics of
the computer system, a visualization on the
computer video screen of a trade-off analysis of two
defined aspects of said plurality of the plans of said
existing set of plans P, and
a user interacting with the visualization of the
trade-off analysis on the computer video screen to
identify a specified trade-off between the two
defined aspects of said plurality of the plans; and
identifying, based on the specified trade-off
between the two defined aspects of said plurality of the
plans, one of the plans of the plurality of plans of the
existing set of plans P as a recommended plan for the
defined process.
REFERENCES
The prior art relied upon by the Examiner is:

Cheng US 6,006,192 Dec. 21, 1999
Milosavljevic
Ferringer
Kraut
US 2002/0188536 A1
US 2012/0084314 A1
US 2012/0272186 A1
Dec. 12, 2002
Apr. 5, 2012
Oct. 25, 2012

REJECTIONS2
Claims 1, 3, 4, 6, 7, 9, 10, 16, 18, 19, and 21–23 stand rejected under
35 U.S.C. § 101 as directed to a judicial exception without significantly
more. Final Act. 10.
Claims 1, 6, 7, 9, 10, and 16 stand rejected under 35 U.S.C. § 103 as
unpatentable over Cheng and Milosavljevic. Id. at 27.

2 The Examiner withdrew the rejection under 35 U.S.C. § 112(b). Ans. 3.
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Claims 21–23 stand rejected under 35 U.S.C. § 103 as unpatentable
over Cheng, Milosavljevic, Ferringer, and Kraut. Id. at 34.
STANDARD OF REVIEW
The Board conducts a limited de novo review of the appealed
rejections for error based upon the issues identified by Appellant and in light
of the arguments and evidence produced thereon. Ex parte Frye, 94
USPQ2d 1072, 1075 (BPAI 2010) (precedential). Arguments not made are
waived. See id.; 37 C.F.R. § 41.37(c)(1)(iv).
ANALYSIS
Rejection under § 101
Principles of Law
An invention is patent-eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101.
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include
implicit exceptions: “[l]aws of nature, natural phenomena, and abstract
ideas” are not patentable. E.g., Alice Corp. v. CLS Bank Int’l, 573 U.S. 208,
216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court’s two-step framework, described
in Mayo and Alice. Id. at 217–18 (citing Mayo Collaborative Servs. v.
Prometheus Labs., Inc., 566 U.S. 66, 75–77 (2012)). In accordance with
that framework, we first determine what concept the claim is “directed
to.” See id. at 219 (“On their face, the claims before us are drawn to the
concept of intermediated settlement, i.e., the use of a third party to mitigate
settlement risk.”); see also Bilski v. Kappos, 561 U.S. 593, 611 (2010)
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(“Claims 1 and 4 in petitioners’ application explain the basic concept of
hedging, or protecting against risk.”).
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and
mental processes (Gottschalk v. Benson, 409 U.S. 63, 67–68 (1972)).
Concepts determined to be patent eligible include physical and chemical
processes, such as “molding rubber products” (Diamond v. Diehr, 450 U.S.
175, 191 (1981)); “tanning, dyeing, making water-proof cloth, vulcanizing
India rubber, smelting ores” (id. at 183 n.7 (quoting Corning v. Burden, 56
U.S. 252, 267–68 (1853))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
If the claim is “directed to” an abstract idea, we turn to the second
step of the Alice and Mayo framework, where “we must examine the
elements of the claim to determine whether it contains an ‘inventive
concept’ sufficient to ‘transform’ the claimed abstract idea into a patent-
eligible application.” Alice, 573 U.S. at 221. “A claim that recites an
abstract idea must include ‘additional features’ to ensure ‘that the [claim] is
more than a drafting effort designed to monopolize the [abstract idea].’” Id.
(alterations in original) (quoting Mayo, 566 U.S. at 77). “[M]erely
requir[ing] generic computer implementation[] fail[s] to transform that
abstract idea into a patent-eligible invention.” Id.
Last year, the USPTO published revised guidance on the application
of § 101 (“Guidance”). See 2019 Revised Patent Subject Matter Eligibility
Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Revised Guidance”); October
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2019 Update: Subject Matter Eligibility (Oct. 17, 2019) (“Update”), 84 Fed.
Reg. 55942 (Oct. 18, 2019) (notice).
Under the Guidance, we first look to whether the claim recites:
(1) any judicial exceptions, including certain groupings
of abstract ideas (i.e., mathematical concepts, certain methods
of organizing human activities such as a fundamental economic
practice, or mental processes); and
(2) additional elements that integrate the judicial
exception into a practical application (see MPEP
§§ 2106.05(a)–(c), (e)–(h) (9th ed. Rev. 08.2017, Jan. 2018)).
Only if a claim (1) recites a judicial exception and (2) does not integrate that
exception into a practical application, do we then look to whether the claim:
(3) adds a specific limitation beyond the judicial
exception that is not “well-understood, routine, conventional
activity” in the field (see MPEP § 2106.05(d)); or
(4) simply appends well-understood, routine,
conventional activities previously known to the industry,
specified at a high level of generality, to the judicial exception.
See Revised Guidance, 84 Fed. Reg. at 56.

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Step 2A, Prong One (Judicial Exception)
The Examiner determines that claim 1 is directed to the abstract idea
of “managing human mental activity” or alternatively certain methods of
organizing human activity.3 Final Act. 12.
Appellant contends that claim 1 is not abstract. Appeal Br. 29–30.
First, Appellant contends “that the Examiner is looking at individual
limitations in the claims and concluding that because some of these
limitations are similar to language found in other claims that were
determined to be abstract, Appellants claims are also abstract.” Id. at 29.
Appellant contends that “[t]he relevant question is not whether an abstract
idea is present in the claims, but whether the claims are directed to an
abstract idea.” Id. at 30. Appellant contends that when the claims are
considered as a whole,
the claims are directed to an automated computer
implemented procedure, using computer generated interactive
displays and user input, to use solution data to guide a user in a
planning process by visualizing a set of plans and to use this
visualization to form visualizations of adjusted plans for the
user to interact graphically with.
Id.
We disagree that claim 1 does not recite an abstract idea. Appellant
appears to misunderstand that the question of whether the claim is directed
to an abstract idea necessarily first considers whether the claim recites an
abstract idea. See Revised Guidance, 84 Fed. Reg. at 54 (“In Prong One,

3 Apart from arguing certain dependent claims separately (discussed below
under Step 2A, Prong 2), Appellant argues the claims as a group. Appeal
Br. 28–34. We, therefore, select claim 1 as representative of the group,
except where we specifically address certain dependent claims below. See
37 C.F.R. § 41.37(c)(1)(iv).
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examiners should evaluate whether the claim recites a judicial exception. . . .
If the claim does not recite a judicial exception, it is not directed to a judicial
exception (Step 2A: NO) and is eligible. This concludes the eligibility
analysis. If the claim does recite a judicial exception, then it requires further
analysis in Prong Two of Revised Step 2A to determine whether it is
directed to the recited exception . . . .”). Further, despite filing its Appeal
Brief after the Revised Guidance issued, Appellant does not address the
Examiner’s finding that claim 1 recites a mental process or certain methods
of organizing human activity. See generally Appeal Br.
We agree with the Examiner that claim 1 recites at least a mental
process because, under the broadest reasonable interpretation, claim 1 recites
a method for guiding a user to make a plan. Claim 1 recites the following
mental process limitations:
identifying one or more characterizations of a defined
process;
generating an existing set of plans P based on the one or
more characterizations, including creating a deterministic
optimization model for a specified problem, and solving the
model for each of a plurality of input data scenarios and each of
a plurality of data ranges to provide a plurality of solutions of
the model, wherein each of the solutions of the model is one of
the plans of the existing set of plans P;
. . . use solution data to guide the user in the planning
process[], including comparing the plans of the set of plans,
choosing one of the plans of the set of plans, defining new
scenarios, and creating new plans, including:
using the existing set of plans P as input and
finding a new plan p, based on specified differences
between said new plan p and the existing set of plans P,
including identifying an added constraint to improve said
existing set of plans P;
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analyzing said new plan p to determine whether
said new plan p satisfies defined criteria;
when said new plan p satisfies the defined criteria,
adding the new plan p to the existing set of plans P;
performing an interactive guidance procedure to
reduce the plans;
. . . visualize a comparison of a plurality of the
plans of said existing set of plans P, including generating
an interactive visual . . . showing visualizations
representing said plurality of the plans of said existing set
of plans P, including
generating . . . a visualization . . . of a trade-
off analysis of two defined aspects of said plurality
of the plans of said existing set of plans P, and
a user interacting with the visualization of
the trade-off analysis . . . to identify a specified
trade-off between the two defined aspects of said
plurality of the plans; and
identifying, based on the specified trade-off
between the two defined aspects of said plurality of the
plans, one of the plans of the plurality of plans of the
existing set of plans P as a recommended plan for the
defined process.
As drafted, these limitations, under their broadest reasonable
interpretation, recite a mental process that can be performed in the human
mind or using a pen and paper. See, e.g., CyberSource Corp. v. Retail
Decisions, Inc., 654 F.3d 1366, 1372–73 (Fed. Cir. 2011) (determining that a
claim whose “steps can be performed in the human mind, or by a human
using a pen and paper” is directed to an unpatentable mental process). These
limitations encompass acts people can perform using their minds or pen and
paper because a person can think about (i.e., identify) characterizations of a
defined process, think about or write (i.e., generate) a set of plans, and use
solution data to guide a user in the planning process by writing down
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planning instructions on paper. A user can compare plans using solution
data in his or her mind, and the user can create new plans on paper.
Similarly, each of the remaining steps of claim 1 can likewise be performed
in the human mind or using pen and paper. For example, visualizing a trade-
off analysis can be performed mentally by writing down trade-offs on paper;
interacting with the visualization can be done mentally by erasing parts of
the visualization or adding additional writing to it, and so on.
Accordingly, for the aforementioned reasons, we determine that
claim 1 recites a mental process, and thus, an abstract idea. See Revised
Guidance, 84 Fed. Reg. at 52.
Appellant separately argues the eligibility of dependent claims 21 and
22, but Appellant only argues that these claims “integrate any abstract idea
into practical applications.” Appeal Br. 33. We also determine claim 21
recites the following mental process limitations:
generating a visualization of three dimensions including a
y-axis, an x-axis and a z-axis;
visualizing a feasibility of each of the plans on the y-axis;
visualizing an objective value of an optimal solution to
each of the plans on the x-axis; and
visualizing a measure controlling robustness on the z-
axis.
See also Final Act. 12 (finding the claims as a whole recite mental activity).
Under the broadest reasonable interpretation, each of these limitations can be
accomplished as mental processes because each step can be performed in the
human mind or using pen and paper. For example, a user can generate a
visualization as claimed on paper by drawing a graph. The user can then
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perform each of the three claimed visualizing steps in the mind or on pen
and paper based on the depicted graph.
We determine that claim 22 recites at least the following mental
process limitations:
the visualizing a measure controlling robustness on the z-
axis includes representing the z-axis . . .; and
the user interacting the visualization of the trade-off
analysis includes . . . for the measure of robustness, . . .
different combinations of the objective values and the
feasibilities appear.
Under the broadest reasonable interpretation, visualizing, interacting, and
depicting combinations of objective values and feasibilities can be
performed in the human mind or as a graph using pen and paper.

Step 2A, Prong 2 (Integration into a Practical Application)
Under the Guidance, we now must determine if additional elements in
the claims integrate the judicial exception into a practical application
(see MPEP §§ 2106.05(a)–(c), (e)–(h)).4
We discern no additional element (or combination of elements)
recited in Appellant’s representative claim 1 that integrates the judicial
exception into a practical application. See Revised Guidance, 84 Fed. Reg.
at 54–55 (“Prong 2”). For example, Appellant’s claimed additional elements
(e.g., “a computer system,” “interactive graphics of the computer system,”

4 We acknowledge that some of the considerations at Step 2A, Prong 2 may
be evaluated under Step 2 of Alice (Step 2B of the Guidance). For purposes
of maintaining consistent treatment within the Office, we evaluate them
under Step 1 of Alice (Step 2A of the Guidance). See Revised Guidance, 84
Fed. Reg. 55 n.25, 27–32.
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“computer video screen”): (1) do not improve the functioning of a computer
or other technology; (2) are not applied with any particular machine (except
for a generic computer, (see, e.g., Spec. ¶¶ 39, 65 (discussed infra)); (3) do
not effect a transformation of a particular article to a different state; and (4)
are not applied in any meaningful way beyond generally linking the use of
the judicial exception to a particular technological environment, such that
the claim as a whole is more than a drafting effort designed to monopolize
the exception. See MPEP §§ 2106.05(a)–(c), (e)–(h). Instead, these
elements merely serve to narrow the recited abstract idea using generic
computer technology, which cannot impart patent-eligibility. See, e.g.,
Spec. ¶¶ 39 (“computer program instructions may be provided to a processor
of a general purpose computer”), 65 (“implement a general purpose
processing system”); Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 716
(Fed. Cir. 2014) (“[A]dding a computer to otherwise conventional steps does
not make an invention patent-eligible. . . . Any transformation from the use
of computers or the transfer of content between computers is merely what
computers do and does not change the analysis.”).
Appellant contends that several limitations of the claim “limit the
conventional practice of guiding a user in optimization based planning
process by reciting a specific visual, interactive mechanism in which the
identification of a recommended plan is done using a specific visual
display.” Appeal Br. 31–32. But this argument focuses on limitations that
we determine are part of the judicial exception as discussed above; thus,
these limitations are not “additional elements” that can impart patent
eligibility to the claim. See Revised Guidance, 84 Fed. Reg. 55 n.24
(“USPTO guidance uses the term ‘additional elements’ to refer to claim
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features, limitations, and/or steps that are recited in the claim beyond the
identified judicial exception.”). “It has been clear since Alice that a claimed
invention’s use of the ineligible concept to which it is directed cannot supply
the inventive concept that renders the invention ‘significantly more’ than
that ineligible concept.” BSG Tech LLC v. BuySeasons, Inc., 899 F.3d 1281,
1290 (Fed. Cir. 2018).
Appellant separately argues that dependent claims 21 and 22 recite a
practical application:
Each of claims 21 and 22 . . . recites additional
technological functions. Also, these limitations of claims 21
and 22 further integrate any abstract idea into practical
applications. The additional limitations of claim 21 limit the
practice of generating a visualization of the trade-off analysis to
a specific display having three axes with specific parameters
visualized on each of these axes. This visualization allows the
user to see different combinations of objective values and
feasibilities and to select a plan that provides a desired trade-
off.
Appeal Br. 33. With respect to claim 21, we determined above that the
entirety of the claim recited an abstract idea. Accordingly, Appellant again
improperly relies on limitations that are not “additional limitations” that can
impart patent eligibility to the claim.
Claim 22, in contrast, recites the following additional limitations: “as
a slider,” “the user dragging the slider,” and “as the user drags the slider.”
The Examiner finds that claim 22 merely recites the “conventional use of
sliders,” citing U.S. Publication Number 2002/0129342 A1, which refers to
a “table fields list box (325) [that] can include conventional elements such as
slider controls and a caption display.” Ans. 19 (emphasis omitted). The
Reply brief does not address this finding by the Examiner. See Reply Br.
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10–11. Accordingly, Appellant waived any argument that the additional
elements of claim 22, including using a slider, is not conventional.
Accordingly, we determine that none of the claims integrates the
judicial exception into a practical application and, therefore, the claims are
directed to the recited abstract idea (a mental process).

Step 2B (Inventive Concept)
Because we find that the claims are directed to an abstract idea, we
next consider whether the claims include additional limitations such that the
claims amount to significantly more than the abstract idea.
The Examiner finds that the claimed computer elements are well-
understood, routine, and conventional. Final Act. 18 (citing Spec. ¶¶ 36, 37,
39, 65, and 67). Appellant does not challenge this finding. See generally
Appeal Br.; see also Reply Br.
We agree that the additional limitations are well-understood, routine,
and conventional. As we explained above, the additional limitations,
individually and as an ordered combination, merely narrow the recited
abstract ideas using generic computer components. Support for our well-
understood, routine, and conventional finding can be found in the
Specification, for example, in paragraphs 39 (“computer program
instructions may be provided to a processor of a general purpose computer”)
and 65 (“implement a general purpose processing system”). These
paragraphs support our finding that the claimed methods and apparatus are
performed with conventional computer hardware. Accordingly, we
determine there are no additional limitations that cause the claims to amount
to significantly more than the abstract idea.
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Thus, we determine no element or combination of elements recited in
claims 1, which Appellant argues as representative, or in claims 21, and 22,
contains any “inventive concept” or adds anything “significantly more” to
transform the abstract concept into a patent-eligible application.
Accordingly, we sustain the Examiner’s rejection of claims 1, 3, 4, 6, 7, 9,
10, 16, 18, 19, and 21–23 under 35 U.S.C. § 101 as being directed to non-
statutory subject matter in light of Alice, its progeny, and the Guidance.

Rejection under § 103
Independent Claims 1 and 16
Appellant first contends that the combination of Cheng and
Milosavljevic “do not disclose or render obvious . . . using solution data and
user input, in the interactive graphical displays, to guide the user in the
planning process.” Appeal Br. 23. Appellant first distinguishes the
teachings of Cheng, but these arguments are irrelevant because the Examiner
applies Milosavljevic for teaching the disputed limitation. See Appeal Br.
22–23; see also Final Act. 31.
Addressing Milosavljevic, Appellant alleges as follows:
“Milosavljevic et al. discloses methods and systems for retirement income
planning. A number of the figures in Milosavljevic et al., including Figs. 5,
7, 8, 9 and 11, show various charts and graphs that illustrate aspects of the
retirement process.” Appeal Br. 23. But Appellant merely describes,
briefly, what Milosavljevic teaches and then states that Cheng and
Milosavljevic do not teach the aforementioned claim limitation. See id.
Such conclusory arguments are unpersuasive.
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Appellant then quotes numerous limitations from claims 1 and 16 and
states, “[o]ther references cited by the Examiner, whether considered
individually or in combination also do not disclose or render obvious thes[e]
features.” Id. at 24. In particular, Appellant contends Ferringer and Kraut
do not teach some of these limitations of claims 1 and 16. These arguments
are irrelevant because the Examiner cites only Cheng and Milosavljevic for
the argued claims 1 and 16, only citing Ferringer and Kraut for claims 21–
23. Final Act. 27, 34.
Finally, Appellant contends the Examiner engaged in impermissible
hindsight:
the Examiner, in combining and modifying Chen et al. and
Milosavljevic et al. as the Examiner has to support the
rejections of the claims, has engaged in hindsight modification
of the prior art—that is, using the teachings of the present
invention to combine and modify the disclosures of the prior art
references.
Appeal Br. 25. Appellant does not explain how the Examiner allegedly
relied on hindsight. Such conclusory argument is unpersuasive of Examiner
error. In any event, “[a]ny judgment on obviousness is in a sense necessarily
a reconstruction based upon hindsight reasoning, but so long as it takes into
account only knowledge which was within the level of ordinary skill at the
time the claimed invention was made and does not include knowledge
gleaned only from applicant’s disclosure, such a reconstruction is proper.”
In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971). Appellant does not
persuade us the Examiner engaged in impermissible hindsight reasoning.
Apart from dependent claims 21 and 22, which we address separately
below, we sustain the Examiner’s rejection of claims 1, 16, and their
corresponding dependent claims.
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Dependent Claims 21 and 22
Turning to claim 21, Appellant contends “[t]he prior art does not
disclose or render obvious generating a visualization of a trade-off-analysis”
as claimed. Appeal Br. 26. Appellant argues as follows:
Appellants note that paragraphs 82–88 of Ferringer et al.
list various trade-offs, such as between cost and design life, and
cost and performance. Also, Kraut discloses visualizing
figures, and, more specifically, paragraph 40 discloses that a
user can select a data point along an x-axis to view sales
figures.
These very general disclosures of Ferringer et al. and
Kraut, however, do not render obvious the specific visualization
described in claim 21—that is, visualizing the feasibility plans,
objective values of optimal solutions to the plans, on the x-axis;
and a measure controlling robustness on, respectively, the y- x-
and z-axes.
Id. at 27.
The Examiner finds Ferringer discloses all the elements of claim 21
except the “z-axis” and “visualizing a measure controlling robustness on the
z-axis.” Final Act. 34–35. The Examiner cites the following portions of
Ferringer as disclosing the elements of claim 21: paragraphs 19, 77–91, 131,
132, 136, and Figures 8A–8F. Id. The Examiner cites the following
portions of Kraut as teaching the remaining features of claim 21: paragraphs
39–42, 45, 46, and Figures 1b, 4a, and 4b. Id. at 35–36. Yet Appellant
addresses only paragraphs 82–88 of Ferringer and paragraph 40 of Kraut.
Appeal Br. 27. We agree with the Examiner that “at no point does Appellant
rebut Examiner’s findings of [the] Final Act[ion] . . . that Ferringer ¶ [0019]
. . . and ¶¶ [0077]–[0091], [0136] [disclose the relevant claim limitations].”
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Ans. 9. Likewise, Appellant does not rebut the Examiner’s full findings on
Kraut. We, therefore, sustain the Examiner’s rejection of claim 21.
Turning to claim 22, Appellant notes that “the Examiner cited
paragraphs 41[,] 42[,] 45[,] and 46 of Kraut.” Appeal Br. 27. Despite
acknowledging these findings, Appellant proceeds to contend only that
paragraph 42 of Kraut does not disclose the claimed limitations. Id. The
Examiner, in fact, cites paragraphs 41, 42, 45, 46 and Figures 1b, 4a, and 4b
of Kraut against claim 22. Final Act. 36. As Appellant does not rebut the
Examiner’s entire rejection, but only picks and chooses which aspect of the
rejection to address, we sustain the Examiner’s rejection of claim 22.
CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 3, 4, 6, 7,
9, 10, 16,
18, 19, 21–
23
101 Eligibility 1, 3, 4, 6, 7,
9, 10, 16,
18, 19, 21–
23

1, 6, 7, 9,
10, 16
103 Cheng, Milosavljevic 1, 6, 7, 9,
10, 16

21–23 103 Cheng, Milosavljevic,
Ferringer, Kraut
21–23
Overall
Outcome
1, 3, 4, 6, 7,
9, 10, 16,
18, 19, 21–
23

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
Appeal 2019-006996
Application 13/948,713

19
AFFIRMED