International Business Machines Corporation

Patent Trials and Appeals Board

Jul 2, 2020

14876186 - (D) (P.T.A.B. Jul. 2, 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.
14/876,186 10/06/2015 Donna E. Dillenberger END920070186US3 7228
11445 7590 07/02/2020
IBM Corporation - Endicott Drafting Center
1701 North Street
Building 256-3
Endicott, NY 13760
EXAMINER
VU, TUAN A
ART UNIT PAPER NUMBER
2193
NOTIFICATION DATE DELIVERY MODE
07/02/2020 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):
edciplaw@us.ibm.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte DONNA E. DILLENBERGER, SANDRA KAY JOHNSON,
JOAN MITCHELL, and DAVID WARD
____________

Appeal 2019-002305
Application 14/876,186
Technology Center 2100
____________

Before KARA L. SZPONDOWSKI, SCOTT B. HOWARD, and
STEVEN M. AMUNDSON, Administrative Patent Judges.

AMUNDSON, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 seeks our review under 35 U.S.C. § 134(a) from a final
rejection of claims 1–14. 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 (2018). Appellant identifies the real party in interest
as International Business Machines Corporation. Appeal Br. 1.
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STATEMENT OF THE CASE
The Invention
According to the Specification, the invention concerns the
“visualization of complex information using a set of navigable landmasses.”
Spec. ¶ 1.2 The Specification explains that a “product or solution lifecycle
includes a number of phases” and that each phase “contains a plethora of
information about the specific product or solution that is present in
numerous knowledge repositories.” Id. ¶ 2. As a result, “it is often difficult
to find and understand specific or related information about a product of
[sic] solution, and the interactions and intra-actions between various
lifecycle phases.” Id. Hence, the invention endeavors to provide a
“visualization of complex information using a set of navigable landmasses,
with specific information (e.g., source information for complex software
code) associated with each landmass.” Id. ¶ 3.
According to the Specification, “generating a visualization of a
programming code base using a set of navigable landmasses” includes
(1) “representing each of a plurality of different code components using
a respective landmass”; (2) “adjusting a size of each landmass based on
a number of lines of code in the code component corresponding to the
landmass”; and (3) “displaying the landmasses.” Spec. ¶ 4, Abstract.

2 This decision uses the following abbreviations: “Spec.” for the
Specification, filed November October 6, 2015; “Final Act.” for the Final
Office Action, mailed May 14, 2018; “Appeal Br.” for the Appeal Brief,
filed August 21, 2018; “Ans.” for the Examiner’s Answer, mailed
November 27, 2018; and “Reply Br.” for the Reply Brief, filed January 28,
2019.
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Exemplary Claim
Independent claim 1 exemplifies the claims at issue and reads as
follows (with formatting added for clarity):
1. A method for generating a visualization of a
programming code base using a visual depiction of
a set of landmasses, the method comprising:
performing, on at least one computer system including
a processing unit and a memory:
representing each of a plurality of different code
components of the programming code base using a
respective visual depiction of a landmass;
adjusting a size of each visual depiction of the
landmass based on a number of lines of code in the code
component corresponding to the visual depiction of the
landmass;
connecting a plurality of the visual depictions
of the landmasses using a number of interconnections,
wherein each interconnection includes a line
connecting the interconnected visual depictions of
the landmasses,
wherein the number of interconnections
between each visual depiction of the plurality of
landmasses reflects a level of interconnectivity
between the corresponding code components of the
interconnected visual depictions of the landmasses,
wherein a higher number of interconnections
between each visual depiction indicates a higher
level of interconnectivity between the
corresponding code components of the
interconnected visual depictions of the landmasses
than a lower number of interconnections,
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wherein interconnectivity between the
corresponding code components is based upon a
number of common lines of code between the code
components represented by the interconnected
landmasses; and
displaying the visual depictions of the landmasses
and the interconnections between the visual depictions of
the landmasses,
wherein each visual depiction of the landmass
includes other visual depictions of other landmasses
displayed within each respective visual depiction of the
landmass, and
wherein a size of each other visual depiction of the
other landmasses displayed within each respective visual
depiction of the landmass is adjusted based on a number
of lines of code in the code component corresponding to
each visual depiction of the other landmasses.
Appeal Br. 19–20 (Claims App.).
The Prior Art Supporting the Rejections on Appeal
As evidence of unpatentability under 35 U.S.C. § 103(a),3 the
Examiner relies on the following prior art:

3 The Leahy-Smith America Invents Act (“AIA”), Pub. L. No. 112-29,
125 Stat. 284 (2011), amended 35 U.S.C. § 103 effective March 16, 2013.
Because the effective filing date for Application 14/876,186 predates the
AIA’s amendment to § 103, this decision refers to the pre-AIA version
of § 103.
Newman et al. (“Newman”) US 5,313,615 May 17, 1994
De Pauw et al. (“De Pauw”) US 5,592,600 Jan. 7, 1997
Burkwald et al. (“Burkwald”) US 6,356,285 B1 Mar. 12, 2002
DeStefano US 6,874,123 B1 Mar. 29, 2005
Charnock et al. (“Charnock”) US 7,421,660 B2 Sept. 2, 2008
(filed Feb. 4, 2003)
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The Rejections on Appeal
Claims 1–14 stand rejected under 35 U.S.C. § 101 as directed to
patent-ineligible subject matter. Final Act. 2–5.
Claims 1–14 stand rejected under 35 U.S.C. § 112 ¶ 1 for failing to
comply with the written-description requirement. Final Act. 5–7.
Claims 1, 4, 6, 7, and 10–14 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Lieberman, DeStefano, Burkwald, Eick, Newman,
De Pauw, and Charnock. Final Act. 8–27.
Claims 2, 3, and 8 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Lieberman, DeStefano, Burkwald, Eick, Newman,
De Pauw, Charnock, and Warren. Final Act. 27–31.4
Claims 1, 4, 5, 7, 9, and 10 stand rejected for obviousness-type double
patenting as unpatentable over claims 1, 4, 5, and 8 in US 8,413,112 B2.
Final Act. 31–33.

4 For the analysis under 35 U.S.C. § 103(a), the Examiner describes claims 5
and 9 as “essentially objected to . . . as being dependent upon a rejected base
claim” but “allowable if rewritten in independent form including all of the
limitations of the base claim and any intervening claims.” Final Act. 34
(emphasis omitted).
Warren et al. (“Warren”) US 7,730,460 B1 June 1, 2010
(filed June 18, 2004)
Henry Lieberman, A Three-Dimensional Representation for Program
Execution (1989) (“Lieberman”).
Stephen G. Eick et al., Seesoft—A Tool for Visualizing Line Oriented
Software Statistics (1992) (“Eick”).
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ANALYSIS
We have reviewed the rejections in light of Appellant’s arguments
that the Examiner erred. For the reasons explained below, we disagree with
the Examiner’s conclusions concerning ineligibility under § 101 and
unpatentability under § 103(a). But we agree with the Examiner’s
determinations regarding failure to comply with the written-description
requirement and obviousness-type double patenting. We adopt the
Examiner’s findings and reasoning for the § 112 and double-patenting
rejections in the Final Office Action and Answer. See Final Act. 5–7,
31–33; Ans. 5–7, 12–13. We provide the following to address and
emphasize specific findings and arguments.
The § 101 Rejection of Claims 1–14
The Patent Act defines patent-eligible subject matter broadly:
“Whoever invents or discovers any new and useful process, machine,
manufacture, or composition of matter, or any new and useful improvement
thereof, may obtain a patent therefor, subject to the conditions and
requirements of this title.” 35 U.S.C. § 101. In Mayo and Alice, the
Supreme Court explained that § 101 “contains an important implicit
exception” for laws of nature, natural phenomena, and abstract ideas. Mayo
Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 70 (2012);
Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014); see Diamond v.
Diehr, 450 U.S. 175, 185 (1981). In Mayo and Alice, the Court set forth a
two-step analytical framework for evaluating patent eligibility. Mayo,
566 U.S. at 77–80; Alice, 573 U.S. at 217–18.
Under Mayo/Alice step one, we “determine whether the claims at
issue are directed to” a judicial exception, i.e., an abstract idea, a law of
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nature, or a natural phenomenon. Alice, 573 U.S. at 217. Step one involves
looking at the “focus” of the claims at issue and their “character as a whole.”
SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1167 (Fed. Cir. 2018).
In January 2019, the PTO issued revised guidance for determining
whether claims are directed to a judicial exception. See 2019 Revised Patent
Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“2019
Guidance”).5 The 2019 Guidance applies to the Board. Id. at 50–51,
57 n.42; see 35 U.S.C. § 3(a)(2)(A) (investing the Director with
responsibility “for providing policy direction” for the PTO).
Under Mayo/Alice step two, we “consider the elements of each claim
both individually and ‘as an ordered combination’ to determine whether the
additional elements” add enough to transform the “nature of the claim” into
“significantly more” than the judicial exception. Alice, 573 U.S. at 217–18,
221–22 (quoting Mayo, 566 U.S. at 78–79). Step two involves the search for
an “inventive concept.” Alice, 573 U.S. at 217–18, 221; Univ. of Fla.
Research Found., Inc. v. Gen. Elec. Co., 916 F.3d 1363, 1366 (Fed.
Cir. 2019). “[A]n inventive concept must be evident in the claims.”
RecogniCorp, LLC v. Nintendo Co., 855 F.3d 1322, 1327 (Fed. Cir. 2017).
Here, the Examiner determines that the claims are directed to an
abstract idea because “one human operator can invoke/initiate commands for
‘representing’, ‘adjusting’, ‘displaying’, and steps of ‘varying’, ‘adjusting’
based on inspected or received, visually presented feedback (computer

5 In response to received public comments, the PTO issued further guidance
in October 2019 clarifying the 2019 Guidance. October 2019 Update:
Subject Matter Eligibility (Oct. 17, 2019) (available at https://www.uspto.
gov/sites/default/files/documents/peg_oct_2019_update.pdf).
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returned data).” Final Act. 2–5; see Ans. 4. The Examiner also determines
that the additional elements do not add enough to transform the “nature of
the claim” into “significantly more” than the judicial exception. See Final
Act. 3–5.
Appellant cites a PTO memorandum about Berkheimer.6 Appeal
Br. 8–9; see Berkheimer v. HP Inc., 881 F.3d 1360 (Fed. Cir. 2018).
Appellant then argues that “the Examiner has failed to apply the guidelines
set forth in” the Berkheimer memorandum for the analysis under Mayo/Alice
step two. Appeal Br. 8–9. Based on that alleged failure, Appellant asserts
that the § 101 rejection is “incomplete and/or deficient on its face.” Id.
at 8–9.
In response, the Examiner states that Appellant’s “mention of a court
case and a USPTO Guidelines amounts to disjoint introduction of facts,
leading to an omission that otherwise would help one to clearly see any
linking between the Berkheimer vs HP case with any pertinent or mandatory
part of” the Berkheimer memorandum. Ans. 4. The Examiner also states
that Appellant’s “argument that the eligibility analysis (in the Final Office
Action) is being incomplete per an absence of Berkheimer vs HP relevancy
to some guidelines is considered largely hard-to-assess and thereby deemed
inconclusive.” Id. at 5.
We agree with Appellant that the § 101 rejection fails to apply the
Berkheimer memorandum’s guidelines for the analysis under Mayo/Alice
step two. See Final Act. 3–5; Ans. 3–5. The 2019 Guidance identifies the

6 PTO Memorandum, Changes in Examination Procedure Pertaining
to Subject Matter Eligibility, Recent Subject Matter Eligibility Decision
(Berkheimer v. HP, Inc.) (Apr. 19, 2018).
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Berkheimer memorandum as applicable to the analysis under Mayo/Alice
step two. 84 Fed. Reg. at 51 & n.6.
In particular, the Berkheimer memorandum explains that under
Mayo/Alice step two “an additional element (or combination of elements) is
not well-understood, routine or conventional unless the examiner finds, and
expressly supports a rejection in writing with, one or more of the following”:
(1) a citation to a statement in the Specification or a statement made during
prosecution; (2) a citation to a court decision; (3) a citation to a publication;
or (4) a statement of official notice. Berkheimer Mem. 3–4. The Examiner
does not support the § 101 rejection with any of those citations or a
statement of official notice. See Final Act. 3–5; Ans. 3–5. Hence, we do
not sustain the § 101 rejection of claims 1–14.
The § 112 ¶ 1 Rejection of Claims 1–14
Among other things, § 112’s first paragraph requires that the
specification “contain a written description of the invention.” 35 U.S.C.
§ 112 ¶ 1. The written-description requirement serves to “clearly allow
persons of ordinary skill in the art to recognize that [the inventor] invented
what is claimed.” Ariad Pharm., Inc. v. Eli Lilly & Co., 598 F.3d 1336,
1351 (Fed. Cir. 2010) (en banc) (alteration in original) (quoting Vas-Cath,
Inc. v. Mahurkar, 935 F.2d 1555, 1563 (Fed. Cir. 1991)); see Blue Calypso,
LLC v. Groupon, Inc., 815 F.3d 1331, 1344 (Fed. Cir. 2016).
“[T]he test for sufficiency 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,
598 F.3d at 1351; Mentor Graphics Corp. v. EVE-USA, Inc., 851 F.3d 1275,
1296 (Fed. Cir. 2017). The “test requires an objective inquiry into the four
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corners of the specification from the perspective of a person of ordinary
skill in the art.” Ariad, 598 F.3d at 1351. While the written-description
requirement “does not demand any particular form of disclosure” or “that
the specification recite the claimed invention in haec verba, a description
that merely renders the invention obvious does not satisfy the requirement.”
Id. at 1352. The analysis for disclosure sufficiency may consider “such
descriptive means as words, structures, figures, diagrams, formulas, etc.”
Lockwood v. Am. Airlines, Inc., 107 F.3d 1565, 1572 (Fed. Cir. 1997).
Independent claims 1, 7, and 13 each include the following limitation:
“wherein interconnectivity between the corresponding code components
is based upon a number of common lines of code between the code
components represented by the interconnected landmasses.” Appeal
Br. 19–20, 22, 24–25.
The Examiner finds that the Specification fails to support visually
depicting “interconnectivity between the corresponding code components
. . . based upon a number of common lines of code between the code
components.” Final Act. 6–7; see Ans. 6–7. The Examiner also finds that
Specification discloses using “lines of code” for adjusting a displayed
landmass size and using “thread level activity” for varying a displayed
interconnection characteristic. Final Act. 6 (citing Spec. ¶¶ 4–10, 21, 24,
Fig. 3).
Appellant contends that the Specification discloses the following
concepts: (1) “interconnected code components and their corresponding
visual depiction as landmasses”; (2) “the size of landmasses as they relate to
the line count of code of the code component”; and (3) “the interconnections
between landmasses, ‘reflect the level of interconnectivity between the
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corresponding code components.’” Appeal Br. 10 (citing Spec. ¶¶ 21, 27
and quoting Spec. ¶ 23); see Reply Br. 8. According to Appellant, “[i]t is
easily understood that the code components shown, described, and claimed
by Appellant[] include lines of code, and that the interconnectivity of the
code components as depicted in the claims is related to the relationship
between those lines of code.” Appeal Br. 10; see Reply Br. 8. Further,
Appellant asserts that “the originally filed claim language, which is part
of the Specification, plainly recites the terms alleged by the Office to be
unsupported.” Appeal Br. 10.
We agree with the Examiner that the Specification fails to support
visually depicting “interconnectivity between the corresponding code
components . . . based upon a number of common lines of code between the
code components.” See Final Act. 6–7; Ans. 6–7. As the Examiner finds,
the Specification discloses using “lines of code” for adjusting a displayed
landmass size and using “thread level activity” for varying a displayed
interconnection characteristic. See, e.g., Spec. ¶¶ 4–10, 21, 23–24, Abstract;
Final Act. 6.
The originally filed claims comport with the Specification. See Spec.
19–26. Originally filed independent claims 1, 7, and 13 recited “adjusting
a size of each landmass based on a number of lines of code in the code
component corresponding to the landmass.” Id. at 19–20, 22, 25. Originally
filed dependent claims 2 and 8 recited “varying a displayed characteristic
of an interconnection based on thread level activity between the code
components of the interconnected landmasses.” Id. at 20, 23.
Appellant does not argue that “thread level activity” relates to “lines
of code.” See Appeal Br. 10–11; Reply Br. 5–8; see also Final Act. 6–7.
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In any event, a disclosure that “merely renders the invention obvious does
not satisfy” the written-description requirement. Ariad, 598 F.3d at 1352.
For the reasons discussed above, Appellant’s arguments have not
persuaded us that the Examiner erred in rejecting claims 1, 7, and 13 for
failing to comply with the written-description requirement. Hence, we
sustain the § 112 ¶ 1 rejection of claims 1–14.
The § 103(a) Rejections of Claims 1–4, 6–8, and 10–14
As noted above, the § 103(a) rejection of claims 1, 7, and 13 rests on
Lieberman, DeStefano, Burkwald, Eick, Newman, De Pauw, and Charnock.
See Final Act. 8–22, 24–27. Appellant argues that the Examiner erred in
rejecting each claim because the references generally, and Newman,
De Pauw, and Charnock in particular, do not teach or suggest the following
limitation in each claim: “wherein interconnectivity between the
corresponding code components is based upon a number of common lines
of code between the code components represented by the interconnected
landmasses.” See Appeal Br. 12–16; Reply Br. 8–13.
Specifically, Appellant asserts that the Examiner fails to “directly
correlat[e] the language of the claim and the portions of” the references that
“allegedly teach the feature of the pending claims.” Appeal Br. 14.
Appellant also asserts that “no reference even mentions any features close
to the claimed features” and, therefore, “no combination of the references
can teach or suggest these features.” Id. at 15.
The Examiner finds that Newman teaches “inter-blocks interaction
with a line joining each block[].” Final Act. 14–15 (emphasis by Examiner)
(citing Newman col. 15, ll. 1–14, col. 16, ll. 14–36, Figs. 1–2). In addition,
the Examiner finds that De Pauw teaches “a visualizing effect of the level in
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terms of thickness of the lines,” e.g., “degrees of interaction.” Id. at 15
(emphases by Examiner) (citing De Pauw col. 8, ll. 42–49, col. 10,
ll. 29–30). Further, the Examiner finds that Charnock teaches visualizing a
“frequency of interaction or communication” using color-coded lines. Id.
(citing Charnock col. 9, ll. 21–35, col. 12, ll. 4–26, col. 13, ll. 3–12, 41–52,
col. 14, ll. 17–24, 26–27, Figs. 3–5, 8–9, 12–14).
Based on the record before us, we agree with Appellant that the
Examiner has not adequately explained how the cited portions of the
references generally, and Newman, De Pauw, and Charnock in particular,
teach or suggest the disputed “wherein” limitation. Newman discloses
blocks “connected by lines” where the “interconnecting lines represent the
transfer of data between the blocks.” Newman col. 16, ll. 18–21. De Pauw
discloses displaying the “degrees of interaction between” nodes “as
connecting lines” where the “color or thickness of these lines” indicates
“the corresponding degree of interaction.” Id. col. 8, ll. 44–49. Charnock
discloses “transaction lines” where the “color or pattern” or the “thickness
of the line” indicates “the frequency of communication” or “the volume of
communication.” Charnock col. 9, ll. 48–51, col. 12, ll. 21–26.
The Examiner has not adequately explained how the references teach
or suggest visually depicting “interconnectivity between the corresponding
code components . . . based upon a number of common lines of code
between the code components” according to claims 1, 7, and 13. Hence, we
do not sustain the § 103(a) rejection of claims 1, 7, and 13.
Claims 4 and 6 depend from claim 1, claims 10–12 depend from
claim 7, and claim 14 depends from claim 13. For the reasons discussed for
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the independent claims, we do not sustain the § 103(a) rejection of these
dependent claims.
Claims 2 and 3 depend from claim 1, and claim 8 depends from
claim 7. On this record, the Examiner has not shown how the additionally
cited Warren reference overcomes the deficiency in the other references
discussed above for claims 1, 7, and 13. Hence, we do not sustain the
§ 103(a) rejection of claims 2, 3, and 8.
Because these determinations resolve the appeal for the § 103(a)
rejections, we need not address Appellant’s other arguments regarding
Examiner error. See, e.g., Beloit Corp. v. Valmet Oy, 742 F.2d 1421, 1423
(Fed. Cir. 1984) (explaining that an administrative agency may render a
decision based on “a single dispositive issue”).
The Double-Patenting Rejection of Claims 1, 4, 5, 7, 9, and 10
Appellant does not contest the double-patenting rejection. See Appeal
Br. 16. Because Appellant does not contest the double-patenting rejection,
we summarily sustain that rejection. See Hyatt v. Dudas, 551 F.3d 1307,
1314 (Fed. Cir. 2008) (explaining that “[w]hen the appellant fails to contest
a ground of rejection to the Board, . . . the Board may treat any argument
with respect to that ground of rejection as waived”); see also Manual of
Patent Examining Procedure (MPEP) § 1205.02 (9th ed. rev. 08.2017
Jan. 2018) (explaining that “[a]n appellant’s brief must present arguments
responsive to every ground of rejection stated by the examiner in the Office
action from which the appeal has been taken (as modified by any advisory
action and/or pre-appeal brief conference decision)”).
CONCLUSION
We reverse the § 101 rejection of claims 1–14.
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We reverse the § 103(a) rejections of claims 1–4, 6–8, and 10–14.
We affirm the § 112 ¶ 1 rejection of claims 1–14.
We affirm the double-patenting rejection of claims 1, 4, 5, 7, 9,
and 10.
Because we affirm at least one ground of rejection for each claim
on appeal, we affirm the Examiner’s decision to reject all of the claims
on appeal. See 37 C.F.R. § 41.50(a)(1).
In summary:
Claims
Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–14 101 Eligibility 1–14
1, 4, 6, 7,
10–14 103(a)
Lieberman,
DeStefano,
Burkwald, Eick,
Newman, DePauw,
Charnock
1, 4, 6, 7, 10–14
2, 3, 8 103(a)
Lieberman,
DeStefano,
Burkwald, Eick,
Newman, DePauw,
Charnock, Warren
2, 3, 8
1–14 112 Written Description 1–14
1, 4, 5,
7, 9, 10 Double Patenting
1, 4, 5,
7, 9, 10
Overall
Outcome 1–14
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TIME PERIOD FOR 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