Splunk Inc.Download PDFPatent Trials and Appeals BoardAug 23, 20212020000736 (P.T.A.B. Aug. 23, 2021) Copy Citation 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. 14/266,523 04/30/2014 Roy Arsan SPLK0009US 6900 138771 7590 08/23/2021 Artegis Law Group, LLP -SPLUNK, Inc. 7710 Cherry Park Drive Suite T104 Houston, TX 77095 EXAMINER COBB, MICHAEL J ART UNIT PAPER NUMBER 2613 NOTIFICATION DATE DELIVERY MODE 08/23/2021 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): algdocketing@artegislaw.com jmatthews@artegislaw.com sjohnson@artegislaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ________________ Ex parte ROY ARSAN, ALEXANDER RAITZ, CLARK ALLAN, and CARY GLEN NOEL ________________ Appeal 2020-000736 Application 14/266,523 Technology Center 2600 ________________ Before JOSEPH L. DIXON, JASON J. CHUNG, and SCOTT E. BAIN, Administrative Patent Judges. CHUNG, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals the Final Rejection of claims 1–18 and 20–47.2 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. INVENTION The invention relates to extracting and viewing data generated by information systems. Spec. ¶ 2. Claim 1 is illustrative of the invention and is reproduced below with emphasis denoting the disputed limitation: 1. A computer-implemented method, comprising: 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. According to Appellant, SPLUNK Inc. is the real party in interest. Appeal Br. 3. 2 Claim 19 is cancelled. Appeal Br. 22. Appeal 2020-000736 Application 14/266,523 2 receiving at a server machine a continuous stream of real- time, time-dependent data values from a data source that is external to the server machine, wherein the data values reflect activity within an information technology infrastructure of an organization; maintaining by the server machine a three-dimensional model that includes a first three-dimensional graphical object that has multiple attributes mapped to different aspects of the real-time, time-dependent data values, wherein coordinates of the first three-dimensional graphical object within the three- dimensional model are determined based on one or more logical relationships between non-physical attributes of components of the information technology infrastructure; rendering by the server machine portions of the three- dimensional model as viewed from one or more selected perspectives while moving along a path from a first position in the three-dimensional model to a second position in the three- dimensional model based on user navigational input, wherein the rendered portions of the three-dimensional model include the first three-dimensional graphical object, and the multiple attributes of the first three-dimensional graphical object are updated in real-time to visually convey changes in the different aspects of the real-time, time-dependent data values; causing the rendered portions of the three-dimensional model to be displayed. Appeal Br. 19 (Claims Appendix) (emphases added). REJECTIONS3 The Examiner rejects claims 1–18 and 20–47 under 35 U.S.C. § 112(a) as failing to comply with the written description requirement. Ans. 3–4. 3 The rejection under 35 U.S.C. § 101 was withdrawn. See Advisory Action mailed on February 28, 2019. Appeal 2020-000736 Application 14/266,523 3 The Examiner rejects claims 1–18 and 20–47 under 35 U.S.C. § 112(b) as being indefinite. Ans. 4–6. The Examiner rejects claims 1, 2, 6–17, 20, 21, 27, 31–34, 36–40, and 42–47 under 35 U.S.C. § 103 as being unpatentable over the combination of Sacerdoti (US 6,188,403 B1; issued Feb. 13, 2001), Tesler (US 6,111,578; issued Aug. 29, 2000), Haigh-Hutchinson (US 2008/0070684 A1; published Mar. 20, 2008), Khan (US 2012/0296609 A1; published Nov. 22, 2012), Prabu (US 2014/0114970 A1; filed Mar. 8, 2013), and Bitincka. Ans. 6–29. The Examiner rejects claims 3, 4, and 30 under 35 U.S.C. § 103 as being unpatentable over the combination of Sacerdoti, Tesler, Haigh- Hutchinson, Khan, Prabu, Bitincka, and Mages (US 2011/0169927 A1; published July 14, 2011). Ans. 29–34. The Examiner rejects claim 5 under 35 U.S.C. § 103 as being unpatentable over the combination of Sacerdoti, Tesler, Haigh-Hutchinson, Khan, Prabu, Bitincka, and Chiu (US 2005/0183041 A1; published Aug. 18, 2005). Ans. 34–35. The Examiner rejects claim 18 under 35 U.S.C. § 103 as being unpatentable over the combination of Sacerdoti, Tesler, Haigh-Hutchinson, Khan, Prabu, Bitincka, and Coale (US 2007/0094041 A1; published Apr. 26, 2007). Ans. 35–36. The Examiner rejects claims 22 and 25 under 35 U.S.C. § 103 as being unpatentable over the combination of Sacerdoti, Tesler, Haigh- Hutchinson, Khan, Prabu, Bitincka, and Risch (US 2004/0090472 A1; published May 13, 2004). Ans. 36–39. Appeal 2020-000736 Application 14/266,523 4 The Examiner rejects claims 23, 24, and 26 under 35 U.S.C. § 103 as being unpatentable over the combination of Sacerdoti, Tesler, Haigh- Hutchinson, Khan, Prabu, Bitincka, Risch, and Coale. Ans. 39–47. The Examiner rejects claim 28 under 35 U.S.C. § 103 as being unpatentable over the combination of Sacerdoti, Tesler, Haigh-Hutchinson, Khan, Prabu, Bitincka, and Judelson (US 2010/0066559 A1; published Mar. 18, 2010). Ans. 47–49. The Examiner rejects claim 29 under 35 U.S.C. § 103 as being unpatentable over the combination of Sacerdoti, Tesler, Haigh-Hutchinson, Khan, Prabu, Bitincka, Judelson, and Ruble (US 2014/0047328 A1; filed May 21, 2013). Ans. 47–52. The Examiner rejects claim 35 under 35 U.S.C. § 103 as being unpatentable over the combination of Sacerdoti, Tesler, Haigh-Hutchinson, Khan, Prabu, Bitincka, Song (US 2006/0044307 A1; published Mar. 2, 2006), and Plattner (US 6,320,586 B1; issued Nov. 20, 2001). Ans. 52–54. The Examiner rejects claim 41 under 35 U.S.C. § 103 as being unpatentable over the combination of Sacerdoti, Tesler, Haigh-Hutchinson, Khan, Prabu, Bitincka, Song, and Lum (US 2013/0144916 A1; published June 6, 2013). Ans. 54–56. ANALYSIS I. Claims 1–18 and 20–47 Rejected Under 35 U.S.C. § 112(a) The Examiner finds the limitation “wherein coordinates of the first three-dimensional graphical object within the three-dimensional model are determined based on one or more logical relationships between non-physical attributes of components of the information technology infrastructure” fails to comply with the written description requirement. Ans. 3–4, 58–60 (citing Appeal 2020-000736 Application 14/266,523 5 Spec. ¶¶ 21, 31, 84); Final Act. 11–12. Appellant argues the Specification describes size, color, and transparency are physical attributes of a particular node. Appeal Br. 12–13 (citing Spec. ¶¶ 20–22); Reply Br. 3–5 (citing Spec. ¶¶ 20–22, 31). Appellant further argues the Specification describes an example of a non- physical attribute is an average number of failed attempts to log into a particular web site, where an attribute (such as the height) of a three- dimensional node that corresponds to the data object fluctuates in real-time as the average number changes, which provides adequate written description support of the limitation from the preceding paragraph. Appeal Br. 12–13 (citing Spec. ¶ 100); Reply Br. 3–5 (citing Spec. ¶¶ 70–74, 84, 88, 100, 114, 115). We agree with Appellant. The determination of whether a patent meets the written description requirement is a “question of fact, judged from the perspective of one of ordinary skill in the art as of the relevant filing date.” Falko-Gunter Falkner v. Inglis, 448 F.3d 1357, 1363 (Fed. Cir. 2006) (citing Vas-Cath, Inc. v. Mahurkar, 935 F.2d 1555, 1563-64). “To fulfill the written description requirement, the patent specification must describe an invention in sufficient detail that one skilled in the art can clearly conclude that the inventor invented what is claimed.” Cordis Corp. v. Medtronic AVE, Inc., 339 F.3d 1352, 1364 (Fed. Cir. 2003) (citations omitted). Our reviewing court has cautioned, however, that “[t]he disclosure as originally filed does not . . . have to provide in haec verba support for the claimed subject matter at issue.” Id. at 1364. “Although [the applicant] does not have to describe exactly the subject matter claimed … the description must clearly allow persons of ordinary skill in the art to recognize that [the applicant] invented Appeal 2020-000736 Application 14/266,523 6 what is claimed.” In re Gosteli, 872 F.2d 1008, 1012 (Fed. Cir. 1989) (citations omitted). Put another way, “the applicant must . . . convey with reasonable clarity to those skilled in the art that, as of the filing date sought, he or she was in possession of the invention.” Vas-Cath, 935 F.2d at 1563- 64. The written description, although it need not include information that is already known and available to the experienced public, must be in sufficient detail to satisfy the statutory requirements, employing “[w]ords, structures, figures, diagrams, formulas, etc., that fully set forth the claimed invention.” Space Systems/Loral, Inc. v. Lockheed Martin Corp., 405 F.3d 985, 987 (Fed. Cir. 2005) (quoting Lockwood v. American Airlines, Inc., 107 F.3d 1565, 1572 (Fed. Cir. 1997)). Such disclosure must do more than merely disclose that which would render the claimed invention obvious. Univ. of Rochester v. G.D. Searle & Co., 358 F.3d 916, 923 (Fed. Cir. 2004); Regents of the Univ. of Cal. v. Eli Lilly & Co., 119 F.3d 1559, 1566-67 (Fed. Cir. 1997); see also PowerOasis, Inc. v. T-Mobile USA, Inc., 522 F.3d 1299, 1306-07 (Fed. Cir. 2008) (explaining that § 112, ¶ 1 “requires that the written description actually or inherently disclose the claim element”). Finally, “[p]recisely how close the original description must come to comply with the description requirement of § 112 must be determined on a case-by-case basis.” Eiselstein v. Frank, 52 F.3d 1035, 1039 (Fed. Cir. 1995) (citation omitted). In this case, the Specification inherently discusses the disputed limitation. That is, the Specification discusses an example of an average number of failed attempts to log into a particular web site (e.g., the average number of failed attempts to log in provides support for the limitation “non- physical attributes”), where an attribute of a three-dimensional node (e.g., Appeal 2020-000736 Application 14/266,523 7 three-dimensional node provides support for the limitation “coordinates of the first three-dimensional graphical object”) that corresponds to the data object (e.g., corresponds to the data object provides support for the limitation “determined based on”) fluctuates in real-time as the average number changes (e.g., the “average number changes” provides support for the limitation “logical relationships between non-physical attributes of components of the information technology infrastructure”). Spec. ¶ 100. Accordingly, we do not sustain the Examiner’s rejection of: (1) independent claims 1, 36, and 37; and (2) dependent claims 2–18, 20–35, and 38–47 under 35 U.S.C. § 112(a). II. Claims 1–18 and 20–47 Rejected Under 35 U.S.C. § 112(b) The Examiner concludes the limitation “wherein coordinates of the first three-dimensional graphical object within the three-dimensional model are determined based on one or more logical relationships between non- physical attributes of components of the information technology infrastructure” is indefinite because a skilled artisan is unable to ascertain the metes and bounds of this limitation from reading the Specification. Ans. 4–6, 61–62; Final Act. 12–13. Appellant argues the Specification describes size, color, and transparency are physical attributes of a particular node. Appeal Br. 13–14 (citing Spec. ¶¶ 20–22); Reply Br. 5–6 (citing Spec. ¶¶ 20–22, 31). Appellant further argues the Specification describes an example of a non- physical attribute is an average number of failed attempts to log into a particular web site, where an attribute (such as the height) of a three- dimensional node that corresponds to the data object fluctuates in real-time as the average number changes, which provides adequate written description Appeal 2020-000736 Application 14/266,523 8 support of the limitation from the preceding paragraph. Appeal Br. 13–14 (citing Spec. ¶ 100); Reply Br. 5–6 (citing Spec. ¶¶ 39, 72, 73, 100, 114, 115). We agree with Appellant. As discussed supra in § I., the Specification inherently provides written description support for the disputed limitation. Moreover, we conclude that the written description clearly provides the metes and bounds for the limitation “wherein coordinates of the first three-dimensional graphical object within the three-dimensional model are determined based on one or more logical relationships between non-physical attributes of components of the information technology infrastructure.” Accordingly, we do not sustain the Examiner’s rejection of: (1) independent claims 1, 36, and 37; and (2) dependent claims 2–18, 20–35, and 38–47 under 35 U.S.C. § 112(b). III. Claims 1–18 and 20–47 Rejected Under 35 U.S.C. § 103 The Examiner finds Khan teaches a heads up display illustrates different colors in a display and colored bars displaying energy used by an electrical outlet, which the Examiner maps to the limitation “wherein coordinates of the first three-dimensional graphical object within the three- dimensional model are determined based on one or more logical relationships between non-physical attributes of components of the information technology infrastructure” recited in claims 1, 36, and 37. Ans. 11–12 (citing Khan ¶¶ 57, 60–62); Final Act. 19 (citing Khan ¶¶ 57, 60–62). Appellant argues Khan merely teaches characteristic and sensor data related to physical attributes of a building, such as geometry, spatial relationships, aspects of building components, energy consumption at a physical outlet, but fails to teach the disputed limitation. Appeal Br. 15; Appeal 2020-000736 Application 14/266,523 9 Reply Br. 6–8. In addition, Appellant argues Khan merely teaches a rendering technique for displaying data in a 2D view of a 3D building model, but fails to teach the disputed limitation. Appeal Br. 15–16; Reply Br. 6–8. We disagree with Appellant. Khan teaches a heads up display illustrates different colors (i.e., the color is one dimension) in a display and colored bars (i.e., the colored bars have two dimensions, one in the X direction and the other in the Y direction) displaying energy (i.e., non-physical attributes) used by an electrical outlet (i.e., graphical object within the three-dimensional model are determined based on one or more logical relationships), which the Examiner maps to the limitation “wherein coordinates of the first three-dimensional graphical object within the three-dimensional model are determined based on one or more logical relationships between non-physical attributes of components of the information technology infrastructure” recited in claims 1, 36, and 37. Ans. 11–12 (citing Khan ¶¶ 57, 60–62); Final Act. 19 (citing Khan ¶¶ 57, 60–62). Appellant does not argue claims 2–18 and 20–47 separately with particularity. Appeal Br. 14–16. Accordingly, we sustain the Examiner’s rejection of: (1) independent claims 1, 36, and 37; and (2) dependent claims 2–18, 20–35, and 38–47 under 35 U.S.C. § 103. We have only considered those arguments that Appellant actually raised in the Briefs. Arguments Appellant could have made, but chose not to make, in the Briefs have not been considered and are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(iv). Appeal 2020-000736 Application 14/266,523 10 CONCLUSION Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–18, 20– 47 112(a) Written Description 1–18, 20– 47 1–18, 20– 47 112(b) Indefiniteness 1–18, 20– 47 1, 2, 6–17, 20, 21, 27, 31–34, 36– 40, 42–47 103 Sacerdoti, Tesler, Haigh-Hutchinson, Khan, Prabu, Bitincka 1, 2, 6–17, 20, 21, 27, 31–34, 36– 40, 42–47 3, 4, 30 103 Sacerdoti, Tesler, Haigh-Hutchinson, Khan, Prabu, Bitincka, Mages 3, 4, 30 5 103 Sacerdoti, Tesler, Haigh-Hutchinson, Khan, Prabu, Bitincka, Chiu 5 18 103 Sacerdoti, Tesler, Haigh-Hutchinson, Khan, Prabu, Bitincka, Coale 18 22, 25 103 Sacerdoti, Tesler, Haigh-Hutchinson, Khan, Prabu, Bitincka, Risch 22, 25 23, 24, 26 103 Sacerdoti, Tesler, Haigh-Hutchinson, Khan, Prabu, Bitincka, Risch, Coale 23, 24, 26 28 103 Sacerdoti, Tesler, Haigh-Hutchinson, Khan, Prabu, Bitincka, Judelson 28 Appeal 2020-000736 Application 14/266,523 11 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. § 1.136(a)(1)(iv). AFFIRMED 29 103 Sacerdoti, Tesler, Haigh-Hutchinson, Khan, Prabu, Bitincka, Judelson, Ruble 29 35 103 Sacerdoti, Tesler, Haigh-Hutchinson, Khan, Prabu, Bitincka, Song, Plattner 35 41 103 Sacerdoti, Tesler, Haigh-Hutchinson, Khan, Prabu, Bitincka, Song, Lum 41 Overall Outcome 1–18, 20– 47 Copy with citationCopy as parenthetical citation