Rogers, Timothy A. et al.

Patent Trials and Appeals Board

Apr 2, 2020

11853560 - (D) (P.T.A.B. Apr. 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.
11/853,560 09/11/2007 Timothy A. Rogers HMCO-0002-P06 3246
87084 7590 04/02/2020
GTC Law Group PC & Affiliates
One University Ave., Ste. 302B
Westwood, MA 02090
EXAMINER
THAI, XUAN MARIAN
ART UNIT PAPER NUMBER
3715
NOTIFICATION DATE DELIVERY MODE
04/02/2020 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):
USPATENTS@gtclawgroup.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte TIMOTHY A. ROGERS, JOHN BOSKO, COREY S. O’BRIEN,
and RAGHUBIR S. MUTUM
___________

Appeal 2018-003372
Application 11/853,560
Technology Center 3700
____________

Before STEFAN STAICOVICI, EDWARD A. BROWN, and
ANNETTE R. REIMERS, Administrative Patent Judges.

REIMERS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE1

Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision to reject claims 1–9, 11, 13–21, and 23 under 35 U.S.C. § 103(a) as

1 The subject application was previously before the Patent Trial and Appeal
Board in Appeal No. 2012-007740. See Decision dated Nov. 28, 2014. In
that Decision, the adverse decision of the Examiner was REVERSED.
Following that Decision, the Examiner reopened prosecution.
2 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as Houghton
Mifflin Harcourt Publishing Company. Appeal Brief (“Appeal Br.”) 2, filed
Dec. 12, 2016.

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Application 11/853,560

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unpatentable over Ashley (US 2004/0229199 A1, published Nov. 18, 2004),
Kelley (US 6,078,921, issued June 20, 2000), and Glenn (US 5,852,724,
issued Dec. 22, 1998). We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

CLAIMED SUBJECT MATTER
The claimed subject matter “relates to computerized testing using a
networked platform, such as the Internet, and it more specifically relates to
tracking online test take status.” Spec. ¶ 5, Fig. 1. Claims 1 and 13 are
independent.
Claim 1 is illustrative of the claimed subject matter and recites:
1. A method comprising:
logging a test taker into an online testing platform prior to
beginning an online test session with a web browser that is
associated with a test station on a remote network;
polling the web browser associated with the test station on
the remote network from a first server on a local network to
obtain data relating to the test taker’s progress toward completing
the test, the data also indicating whether the online test session
communication between the first server and the web browser has
been interrupted;
summarizing the data;
presenting the summarized data to the online testing
platform to indicate the test taker’s testing progress;
polling the web browser associated with the test station on
the remote network from the first server on the local network to
determine whether the online test session has resumed with a
second server; and
exchanging information about the online test session
between the first server on the local network and the second
server to facilitate switching the online test session over to the
first server.

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Application 11/853,560

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ANALYSIS

Independent claim 1 is directed to an online testing platform method
including, inter alia, the steps of “polling the web browser . . . to obtain data
. . . indicating whether the online test session communication between the
first server and the web browser has been interrupted” and “presenting . . .
summarized data to the online testing platform to indicate the test taker’s
testing progress.” Appeal Br. 22 (Claims App.). For the polling step, the
Examiner finds that Ashley “discloses all of the claimed subject matter” for
claim 1 with the exception of, among other things, “the feature of polling the
web browser . . . to obtain data . . . indicating whether the online test session
communication between the first server and the web browser has been
interrupted.” Final Act. 3.3 The Examiner finds that “Kelley teaches polling
a web browser from a first server on a local network to obtain data ‘to see if
the browser is running’ (column 8 lines 62-64).” Final Act. 3; see also Ans.
13.4 The Examiner takes the position that although Kelly “is not within the
field of obtaining data relating to the test taker’s progress, it is analogous in
that it shows techniques for polling the web browser to obtain data relating
to the communication with the server during operation has been interrupted.”
Final Act. 3; see also Ans. 13 (both emphasis added).
Appellant contends that “[t]here is absolutely no teaching or
suggestion that Kelley is polling a browser to obtain data from the browser.”
Reply Br. 35; see also Appeal Br. 8–10. According to Appellant, “Kelley

3 Final Office Action (“Final Act.”), dated Dec. 23, 2015.
4 Examiner’s Answer (“Ans.”), dated Dec. 11, 2017.
5 Reply Brief (“Reply Br.”), filed Feb. 12, 2018.
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does not poll a browser for specific data at all.” Reply Br. 2; see also id.
(“Kelley doesn’t disclose obtaining data from a browser at all.”).
Kelley discloses that “[a]t step 509 the server periodically polls the
browser to see if the browser is running. If not, the server exits at step 510.”
Kelley 8:62–64, Fig. 5; see also Final Act. 3; Ans. 13; Appeal Br. 8–10;
Reply Br. 2–3. We agree with Appellant that in the portion of Kelley cited
by the Examiner (i.e., Kelley 8:62–64), “Kelley is merely polling a browser
to see if the browser is still running, not to obtain any specific data from the
browser.” Reply Br. 2 (emphasis added). As such, the Examiner fails to
establish by a preponderance of the evidence that the combined teachings of
Ashley and Kelly disclose the polling step of claim 1.
For the presenting step, the Examiner looks to the teachings of
Ashley. Final Act. 2; see also Ans. 3–4. In particular, the Examiner finds
that Ashley discloses “presenting the summarized data to the online testing
platform to indicate the test taker’s testing progress (view disaggregated
reports feature allows a system user to view raw test results at the test,
student or item level (paragraph 1510) (detecting and reporting fault
tolerance) (0364-0374)[)].” Final Act. 2; see also Ans. 3–4.
Appellant contends that Ashley fails to disclose the step of
“presenting the summarized data to the online testing platform to indicate
the test taker’s testing progress.” Appeal Br. 10. Appellant contends that
paragraph 1510 of Ashley “teaches a ‘View Disaggregated Reports’ feature
that allows a system user to view raw test results, e.g., questions and
answers, at ‘the test, student or item level.’” Id. According to Appellant,
“[t]his means that an observer can view the test results but does not teach or
suggest that the results are available during the testing period itself.” Id.
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Appellant further contends that “[t]here is also no teaching or suggestion of
‘summarized data’ as asserted in the rejection, because the paragraph itself
refers to ‘raw test results,’ not summarized data.” Appeal Br. 10.
As an initial matter, Appellant correctly notes that “[t]he Examiner . . .
provides no response to [Appellant’s] argument that Ashley does not
disclose the [presenting] step.” Reply Br. 4; see also id. (“[T]he Examiner
provides no counterargument.”); Ans., passim.
Appellant’s Specification discloses that
[i]n the method, the data relating to the test taker’s progress is
related to completion of a test question. In the method, the data
relating to the test taker’s progress represents a check of test taker
status, test taker idle time, aspects of network connectivity
between the online testing platform and the computing facility,
or an indication of the test taker requesting a proctoring action.

Spec. ¶ 32; see also Appeal Br. 4.
Paragraph 1510 of Ashley discloses, “Introduction/Purpose–The View
Disaggregated Reports feature allows a system user to view raw test results
at the test, student or item level.” As correctly noted by Appellant, “‘raw
test results[]’ [are] not summarized data.” Reply Br. 4; see also Appeal Br.
10. We agree with Appellant that paragraph 1510 of Ashley discloses “an
observer can view the test results but does not teach or suggest that the
results are available during the testing period itself.” Reply Br. 4; see also
Appeal Br. 10. Stated differently, paragraph 1510 of Ashley fails to disclose
that the raw test results are indicative of a test taker’s progress toward
completing a test question (i.e., that the raw test results represent a summary
of test taker status, test taker idle time, network connectivity between the
online testing platform and the computing facility, and/or the test taker
requesting a proctoring action.). See Spec. ¶ 32.
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As to paragraphs 364 through 374 of Ashley, the Examiner fails to
adequately explain, and it is not readily apparent to the Board, how
“detecting and reporting fault tolerance” constitutes “summarized data” that
“indicate[s] the test taker’s testing progress,” as required by claim 1. See
Final Act. 2; see also Ans. 3–4; Appeal Br. 22 (Claims App.). For these
reasons, the Examiner fails to establish by a preponderance of the evidence
that Ashley discloses the presenting step of claim 1.
Similar to independent claim 1, independent claim 13 is directed to an
online testing platform system and includes language directed to polling the
web browser to obtain data as to whether the online test session
communication between the first server and the web browser has been
interrupted and to a data summary that indicates the test taker’s testing
progress. See Appeal Br. 23 (Claims App.). The Examiner relies on similar
unsupported findings in Ashley and Kelley as those discussed above for
claim 1. See Final Act. 6–7. As such, the Examiner’s findings with respect
to Ashley and Kelley are deficient for claim 13 as well.
Accordingly, we do not sustain the Examiner’s rejection of claims 1–
9, 11, 13–21, and 23 as unpatentable over Ashley, Kelley, and Glenn.

CONCLUSION
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–9, 11, 13–
21, 23
103(a) Ashley, Kelley,
Glenn
1–9, 11, 13–
21, 23

REVERSED