John Ryan. Caldwell

Patent Trials and Appeals Board

Jul 23, 2019

13573356 - (D) (P.T.A.B. Jul. 23, 2019)

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.
13/573,356 09/11/2012 John Ryan Caldwell 3552.2.4 1146
136265 7590 07/23/2019
Kunzler, PC. - MX
50 West Broadway
10th Floor
Salt Lake City, UT 84101
EXAMINER
BLAUFELD, JUSTIN R
ART UNIT PAPER NUMBER
2142
NOTIFICATION DATE DELIVERY MODE
07/23/2019 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):
docket@kunzlerlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JOHN RYAN CALDWELL
____________

Appeal 2018-008444
Application 13/573,356
Technology Center 2100
____________

Before ROBERT E. NAPPI, JOHN A. JEFFERY, and JOYCE CRAIG,
Administrative Patent Judges.

JEFFERY, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision to reject claims 1, 10, 21–23, 26–35, and 38. We have jurisdiction
under 35 U.S.C. § 6(b). We affirm.

STATEMENT OF THE CASE
Appellant’s invention graphically represents the status of a parent-
child relationship by allowing the viewer to ascertain quickly whether the
child is within, is close to, or has exceeded expected norms or limits of the
parent. See generally Spec. ¶ 7. Claim 1 is illustrative:

1 Appellant identifies the real party in interest as MX Technologies, Inc.
App. Br. 2.
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1. A method for graphically displaying status of a parent-child relationship
in a computer system,
the method comprising:
retrieving budgeting data from computer memory wherein the
budgeting data comprises parent budget data and child budget data,
displaying the budgeting data using the computer system to
graphically depict a parent budget, as a circular bubble having a perimeter,
and a child budget meter, as a circular ring positioned within the circular
bubble and running parallel to but spaced apart from the perimeter of the
circular bubble by a gap, in a parent-child budgeting relationship on a
display device of the computer system, the child budget meter illustrating
both:
(a) potential of the parent-child budgeting relationship, and
(b) progress of the child budget meter toward or beyond the
potential of the parent-child budgeting relationship, with the circular
ring of the child budget meter divided into multiple child arcs each
representing one of multiple child budgets of the parent budget, each
child arc independently colored to represent whether the represented
child budget is within, is close to exceeding, or has exceeded its
budgeted amount;
displaying a budget name, a budgeted amount, an expenses amount, a
percentage of budget used, and a representative symbol for the parent
budget in the circular bubble inside the circular ring;
continuously monitoring an amount for the parent budget;
detecting that the amount for the parent budget is less than an original
amount for the parent budget;
adjusting, dynamically, a size of the graphical depiction of the parent
budget to correspond to the detected amount for the parent budget in
response to detecting that the amount of the parent budget has changed, the
graphical depiction of the parent budget shrinking to represent the change in
the amount for the parent budget being less than the original amount for the
parent budget; and
eliminating, dynamically, the display of one or more of the budget
name, the percentage of budget used, the budgeted amount, the expenses
amount, and the representative symbol in response to the graphical depiction
of the parent budget shrinking.

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THE REJECTIONS
The Examiner rejected claims 1, 10, 21, 27, 28, and 31 under
35 U.S.C. § 103 as unpatentable over Daubney (US 2012/0215464 A1;
published Aug. 23, 2012), Jobs (US 2007/0149252 A1; published June 28,
2007), Jesse Mecham, YNAB 4: Spending by Category & Spending by
Payee, June 23, 2012, available at youneedabudget.com (“Mecham”), and
Cain (US 2006/0236264 A1; published Oct. 19, 2006). Final Act. 4–15.2
The Examiner rejected claims 22, 23, 26, 29, and 30 under 35 U.S.C.
§ 103 as unpatentable over Daubney, Jobs, Mecham, Cain, and Shergill (US
2012/0130869 A1; May 24, 2012). Final Act. 15–20.
The Examiner rejected claims 32–35 and 38 under 35 U.S.C. § 103 as
unpatentable over Shergill, Mecham, Adair (US 2012/0084168 A1;
published Apr. 5, 2012), Jobs, and Cain. Final Act. 20–34.

THE OBVIOUSNESS REJECTION OVER DAUBNEY, JOBS,
MECHAM, AND CAIN

Regarding independent claim 1, the Examiner finds that Daubney
discloses a method for graphically displaying status of a parent-child
relationship including, among other things, retrieving budgeting data
comprising (1) parent data, namely the data associated with the total utility
cost in Figure 41, and (2) child budget data, namely the data associated with
“Electricity,” “Gas,” and “Water.” Final Act. 5–8. According to the

2 Throughout this opinion, we refer to (1) the Final Rejection mailed August
9, 2017 (“Final Act.”); (2) the Appeal Brief filed February 12, 2018
(supplemented March 23, 2018 & May 10, 2018) (“App. Br.”); (3) the
Examiner’s Answer mailed June 15, 2018 (“Ans.”); and (4) the Reply Brief
filed August 15, 2018 (“Reply Br.”).
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Examiner, Daubney continuously monitors for an amount for the parent
budget, and adjusts a size of the parent budget’s graphical depiction to
correspond to a detected amount for the parent budget responsive to
detecting that the amount has changed. Final Act. 7–8. The Examiner
acknowledges that Daubney does not disclose (1) depicting the parent
budget as a circular bubble, and a child budget meter as a circular ring
within the bubble; (2) the circular ring having independently colored child
arcs; and (3) dynamically eliminating various displayed features responsive
to shrinking the parent budget’s graphical depiction. Final Act. 8–11. The
Examiner, however, cites Mecham, Jobs, and Cain for teaching features (1)–
(3), respectively, in concluding that the claim would have been obvious. Id.
Appellant argues that Daubney does not teach a budgeted amount for
a parent category, let alone continuously monitoring that amount and
dynamically adjusting the size of the parent budget’s graphical depiction
based on that monitored amount. App. Br. 5–6; Reply Br. 2–4. Appellant
adds that (1) Mecham fails to show a child budget meter as a circular ring
positioned within a corresponding parent budget graphical representation,
and (2) Cain does not remove graphical interface elements when the size of a
graphically presented item is dynamically changed. App. Br. 6–8; Reply Br.
4–7.

ISSUE
Under § 103, has the Examiner erred in rejecting claim 1 by finding
that Daubney, Jobs, Mecham, and Cain collectively would have taught or
suggested (1) continuously monitoring an amount for a parent budget; (2)
dynamically adjusting the size of the parent budget’s graphical depiction
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responsive to detecting the amount has changed; (3) positioning a child
budget meter as a circular ring within a corresponding parent budget
graphical representation; and (4) dynamically eliminating the displayed
budget name, used budget percentage, budgeted amount, expenses amount,
and/or representative symbol responsive to the parent budget’s graphical
depiction shrinking?

ANALYSIS
We begin by noting that the Examiner’s reliance on the Jobs reference
is undisputed, as is the cited references’ combinability. Rather, as noted
above, this dispute turns solely on the Examiner’s reliance on Daubney,
Mecham, and Cain for teaching the disputed limitations. Therefore, we
confine our discussion to those references.
Turning to claim 1, we note a key inconsistency in the disputed
limitations. Although the claim recites continuously monitoring an amount
for a parent budget, the claim further recites that the parent budget’s
graphical depiction is adjusted dynamically responsive to detecting that the
amount of the parent budget has changed. Our emphasis underscores a key
ambiguity here: it is one thing to monitor an amount for a budget, but quite
another to monitor an amount of that budget.
The Examiner’s construction highlights this distinction, for the
Examiner construes the recited continuously monitoring an amount for a
parent budget quite broadly to read on monitoring any amount for a parent
budget, including an expense amount. Ans. 4–5. Although this broad
construction is arguably inconsistent with detecting changes in the amount of
the parent budget as claimed, the claim nevertheless also recites
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continuously monitoring an amount for a parent budget. Given this
ambiguity, we see no reversible error in the Examiner’s broader
construction. We do, however, leave the question of whether this ambiguity
renders the claims indefinite under § 112, second paragraph for the
Examiner to consider after this opinion, particularly where, as here, the
independent claims are amenable to at least two plausible constructions due
to this ambiguity. See Ex parte Miyazaki, 89 USPQ2d 1207, 1211 (BPAI
2008) (precedential) (“[I]f a claim is amenable to two or more plausible
claim constructions, the USPTO is justified in requiring the applicant to
more precisely define the metes and bounds of the claimed invention by
holding the claim unpatentable under 35 U.S.C. § 112, second paragraph, as
indefinite.”); see also MANUAL OF PATENT EXAMINING PROCEDURE (MPEP)
§ 2173.05(b)(II) (9th ed. Rev. 08.2017, Jan. 2018) (citing Miyazaki).
Given the Examiner’s construction, we see no error in the Examiner’s
reliance on Daubney for at least suggesting continuously monitoring an
amount for a parent budget, where this amount includes at least expenses
based on monitored energy consumption data. See Final Act. 7 (citing
Daubney ¶¶ 83–84, 96); Ans. 5. Notably, these consumption-based
expenses directly affect an associated parent budget, such as the “total”
budget-based data shown in Daubney’s Figure 4a. See Final Act. 5 (finding
that Daubney’s Figure 4a shows a “total” utilities parent budget); Ans. 5.
Appellant’s contention, then, that Daubney does not continuously monitor a
budgeted amount for the parent category (App. Br. 6; Reply Br. 2–4) is not
commensurate with the scope of the claim, which is not limited to
monitoring budgeted amounts as noted above. To the extent Appellant
contends that the claim must be so limited given the Specification’s single
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disclosed embodiment for monitoring budgeted amounts for a parent budget
(see Reply Br. 4), that alone does not restrict our interpretation to that
embodiment. See Phillips v. AWH Corp., 415 F.3d 1303, 1323 (Fed. Cir.
2005) (en banc) (rejecting contention that if a patent describes only a single
embodiment, the claim must be limited to that embodiment). Although
Appellant’s description informs our understanding of the recited monitoring
an amount for the parent budget, we nonetheless decline to import that
description into the claims. See id. at 1323 (“[A]lthough the specification
often describes very specific embodiments of the invention, we have
repeatedly warned against confining the claims to those embodiments. . . .
[C]laims may embrace different subject matter than is illustrated in the
specific embodiments in the specification.”) (citations and internal quotation
marks omitted).
Nor are we persuaded of error in the Examiner’s reliance on Daubney
for at least suggesting dynamically adjusting a graphical depiction of a
parent budget responsive to changes in corresponding amounts as claimed.
See Final Act. 7–8 (citing Daubney ¶¶ 106, 110, 113). Both Daubney’s
Figures 4a and 4b show graphical bar-shaped depictions whose size reflects
the relative difference between actual and budgeted costs. See Daubney
¶ 113 (noting that the length of each bar in Figure 4b shows how much
difference there is between the actual amount (e.g., consumption, cost) and
the budget). Notably, not only does the length of each bar implicate the
parent budget in Daubney’s paragraph 113, but also its width which shows
how large the budget of a particular meter or utility is compared to the total
budget as noted in paragraph 115. Given these changes in size of graphical
budget-based depictions, we see no error in the Examiner’s finding that this
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functionality at least suggests adjusting the size of parent budget graphical
depictions responsive to changes in associated amounts. See Final Act. 7–8
(citing Daubney ¶¶ 106, 110, 113). That Appellant does not squarely
address—let alone persuasively rebut—these particular findings from
Daubney as the Examiner indicates (Ans. 8) only further weighs in favor of
the Examiner. Moreover, adjusting the size of parent budget graphical
depictions responsive to changes in associated amounts in light of
Daubney’s budget-based size adjustments of associated graphical depictions
in Figures 4a and 4b would have been at least an obvious variation, for
ordinarily skilled artisans are also those of ordinary creativity—not
automatons. See KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 421 (2007).
We also see no error in the Examiner’s reliance on Mecham at least to
the extent that it would have been obvious to (1) depict Daubney’s identified
parent budget data, namely that associated with the total amounts in Figures
4a and 4b, as a circular bubble, and (2) position a child budget meter
associated with Daubney’s identified child budget data, namely at least one
of the constituent electricity, gas, and water child budgets, as a circular ring
within the “parent” bubble as claimed. See Final Act. 5, 9–10; Ans. 6–7.
We reach this conclusion noting, as does the Examiner, that Mecham’s pie
charts on page 2 represent a hierarchy of budget-based categories, including
a “Personal” category, and a sub-category entitled “Kids’ Activities” whose
circular ring spans 69% of the “Personal” category’s circumference. See
Final Act. 10; Ans. 6.
Although Mecham’s pie charts represent expenditures as Appellant
indicates (Reply Br. 4–5), they are nonetheless tied to creating and
maintaining a budget; indeed, that is the very purpose of Mecham. See
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Mecham 1–3. That the acronym “YNAB” on Mecham’s page 1 stands for
“You need a budget” is telling in this regard. See Mecham 1 (citing the web
site www.youneedabudget.com/blog/). Therefore, we see no reason why
such a circular representation could not be used to present Daubney’s
relative budget-based data in Figures 4a and 4b as the Examiner proposes,
particularly since both references teach graphically representing hierarchical
budget-based data, including sizing the respective graphical representations
of that data commensurate with their relative amounts. To the extent that
Appellant contends that representing Daubney’s hierarchical budget-based
data graphically using the recited “ring-in-bubble” representation of the
child and parent budgets such as that shown in Mecham would have been
uniquely challenging or otherwise beyond the level of ordinarily skilled
artisans, there is no persuasive evidence on this record to substantiate such a
contention. See KSR, 550 U.S. at 417 (noting that if a technique has been
used to improve one device, and an ordinarily skilled artisan would
recognize that it would improve similar devices in the same way, using the
technique is obvious unless its actual application is beyond his or her skill);
see also Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162
(Fed. Cir. 2007).
To be sure, Mecham’s circular ring for “Kids’ Activities,” which
spans 69% of the circumference of the circular bubble for the “Personal”
category, overlaps the bubble completely and, therefore, is not spaced apart
from the bubble by a gap as claimed. See Mecham 2. Nevertheless, we see
no error in the Examiner’s reliance on Daubney for at least suggesting that
providing such a gap would have been at least an obvious variation, given
the spacing between the parent and child budget data in Daubney’s Figure 4a
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as the Examiner indicates. See Final Act. 5. Nor do we see any
functionality imparted by this gap that would not otherwise be provided by
the proposed combination; rather, the recited gap is essentially a mere
aesthetic feature that constitutes non-functional descriptive material as the
Examiner indicates. See Ans. 7. In any event, ordinarily skilled artisans are
those of ordinary creativity—not automatons. See KSR Int’l Co. v. Teleflex,
Inc., 550 U.S. 398, 421 (2007). Therefore, to the extent that Appellant
contends that providing such a gap in the Daubney/Mecham “ring-in-
bubble” representation would have been uniquely challenging or otherwise
beyond the level of ordinarily skilled artisans, there is no persuasive
evidence on this record to substantiate such a contention.
In reaching our conclusion, we note the Examiner does not rely solely
on Mecham for teaching the recited “ring-in-bubble” representation of the
child and parent budgets, but rather Daubney and Mecham collectively in
this regard. See Final Act. 9–10. Appellant’s contention, then, that Mecham
does not show a child budget meter positioned within a graphical
representation of a corresponding parent budget (App. Br. 7; Reply Br. 5) is
unpersuasive, for this argument based on Mecham’s alleged shortcomings in
this regard does not show nonobviousness where, as here, the rejection is
based on the cited references’ collective teachings. See In re Merck & Co.,
800 F.2d 1091, 1097 (Fed. Cir. 1986).
Lastly, despite Appellant’s arguments to the contrary (App. Br. 7–8;
Reply Br. 6–7), we see no error in the Examiner’s reliance on Cain for at
least suggesting eliminating the display of at least one of the recited
displayed elements responsive to shrinking the parent budget’s graphical
depiction. Final Act. 11; Ans. 7–8. In Cain, responsive to a request to resize
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a window 118 in Figure 2, control components 208 are removed according
to their relative importance. See Cain ¶ 31. Cain, therefore, at least suggests
eliminating displayed elements responsive to shrinking an associated
graphical depiction, namely the window encompassing those elements. See
id. Appellant’s contention that Cain does not remove graphical interface
elements when the size of a graphically presented item is dynamically
changed (App. Br. 6–8; Reply Br. 4–7) not only ignores the fact that the
window 118 itself is a “graphically presented item,” but also does not
persuasively rebut the Examiner’s findings and conclusions in this regard
that are not based on Cain alone, but rather the cited references’ collective
teachings. See Merck, 800 F.2d at 1097; see also Ans. 8 (noting this point).
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 1, and claims 10, 21, 27, 28, and 31 not argued separately with
particularity.

THE OTHER OBVIOUSNESS REJECTIONS
We also sustain the Examiner’s obviousness rejections of claims 22,
23, 26, 29, 30, 32–35, and 38. Final Act. 15–34. Because these rejections
are not argued separately with particularity, we are not persuaded of error in
these rejections for the reasons previously discussed.

CONCLUSION
The Examiner did not err in rejecting claims 1, 10, 21–23, 26–35, and
38 under § 103.

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DECISION
We affirm the Examiner’s decision to reject claims 1, 10, 21–23, 26–
35, and 38.
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