Wells Fargo Bank, N.A.

Patent Trials and Appeals Board

Jul 8, 2021

2020001241 (P.T.A.B. Jul. 8, 2021)

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.
14/694,144 04/23/2015 Traci H. Nguyen 76750-048US-000 6146
85539 7590 07/08/2021
James J. Pingor
1301 East 9th Street, Suite 3500
Cleveland, OH 44114
EXAMINER
WALIULLAH, MOHAMMED
ART UNIT PAPER NUMBER
2498
NOTIFICATION DATE DELIVERY MODE
07/08/2021 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):
jpingor@walterhav.com
patents@walterhav.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte TRACI H. NGUYEN, MICHAEL CHANG,
NAIROBI N. KIM, IAN JENSEN, and SAMUEL MARTIN
____________

Appeal 2020-001241
Application 14/694,144
Technology Center 2400
____________

Before KALYAN K. DESHPANDE, CHARLES J. BOUDREAU, and
SHARON FENICK, Administrative Patent Judges.

FENICK, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–4, 6–12, 14–18, and 20–23, which
are all of the pending claims. We have jurisdiction under 35 U.S.C.
§ 6(b)(1).

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies Wells Fargo as the real party in
interest. Appeal Br. 3.
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We AFFIRM.
CLAIMED SUBJECT MATTER
Appellant’s invention relates to computer security, in particular
calculating a security score of a user based on data such as user-selected
attributes, configuration attributes, user interactions, potential threats, and
current malware trends. Spec. ¶ 7.
Claims 1, 11, and 17 are independent. Claim 1, reproduced below, is
illustrative of the subject matter on appeal:
1. A system for scoring security, comprising:
a memory and a CPU/hardware processing unit;
a monitoring component receiving data associated with one or
more interactions between a user and a resource;
a scoring component calculating a security score based on the
data associated with one or more of the interactions;
a learning component analyzing one or more additional security
factors which influence security for one or more additional users, said
one or more additional users not associated with the one or more
interactions of the user; and
a suggestion component generating one or more suggested
actions to improve the security score,
wherein the monitoring component, the scoring component, the
learning component, or the suggestion component is implemented via
a hardware processing unit.
Appeal Br. 23 (Claims App.).
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REJECTIONS
The Examiner rejects claims 1–4, 7–12, and 15–18 under 35 U.S.C.
§ 103 as being unpatentable over Bilinski2 and Pruthi.3 Final Act. 5–10.
The Examiner rejects claims 6, 14, and 20 under 35 U.S.C. § 103 as
being unpatentable over Bilinski, Pruthi, and Sridhara.4 Final Act. 10–11.
The Examiner rejects claims 21–23 under 35 U.S.C. § 103 as being
unpatentable over Bilinski, Pruthi, and Guday.5 Final Act. 11–12.
OPINION
Appellant argues that the Examiner fails to properly apply the
Graham factors for determining obviousness, i.e., (1) determining the scope
and content of the prior art, (2) ascertaining differences between the prior art
and the claims at issue, and (3) resolving the level of ordinary skill in the
pertinent art. Appeal Br. 10–11, 18; see Graham v. John Deere Co.,
383 U.S. 1, 17 (1966). According to Appellant, the Examiner thus fails to
establish a prima facie case of obviousness and shift the burden of rebuttal to
Appellant. Appeal Br. 10–11, 16, 22.
We disagree. For example, the Examiner finds that Bilinski discloses
a system for scoring security comprising a memory, CPU/hardware
processing unit, monitoring component, and scoring component as recited in
independent claim 1. Final Act. 6 (citing Bilinski Figs. 1–4). The Examiner

2 Bilinski et al., US 8,793,255 B1 (iss. July 29, 2014).
3 Pruthi et al., US 2015/0310205 A1 (pub. Oct. 29, 2015).
4 Sridhara et al., US 2015/0101048 A2 (pub. Apr. 9, 2015).
5 Guday et al., US 2015/0128219 A1 (pub. May 7, 2015).
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further finds that Bilinski discloses “a learning component analyzing one or
more additional security factors which influence security for one or more
additional users,” but that Bilinski does not disclose “said one or more
additional users not associated with the one or more interactions of the user”
or “a suggestion component generating one or more suggested actions to
improve the security score” (each recited in claim 1). Id. at 6–7; Ans. 8.
The Examiner then finds that Pruthi discloses the limitations of claim 1 not
taught by Bilinski and determines that it would have been obvious to one of
ordinary skill in the art to modify Bilinski with the teachings of Pruthi “in
order to promote awareness among customers of their information security
and encourage customers to take proactive steps to ensure the security of
their online accounts.” Final Act. 7 (citing Pruthi ¶¶ 3, 77, Fig. 2); Ans. 7–8
(citing Pruthi ¶ 39). Thus, the Examiner determines the scope and content of
the Bilinski and Pruthi references, as well as the differences between
Bilinski and claim 1, before determining that it would have been within the
level of ordinary skill in the art to modify Bilinski with the teachings of
Pruthi.
Appellant argues that the Examiner’s characterization of the level of
ordinary skill in the art is overly broad. Appeal Br. 18 (citing Advisory Act.
(Feb. 7, 2018) (“The level of ordinary skill in the art is deemed to be a
person who is presumed to be aware of all prior art, specifically relating to
control.”)). Appellant has not indicated what a more appropriate definition
of the level of ordinary skill in the art would be, or shown that the
combinations proposed by the Examiner would have been nonobvious under
a different level of ordinary skill in the art.
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[A]ll that is required of the office to meet its prima facie burden
of production is to set forth the statutory basis of the rejection
and the reference or references relied upon in a sufficiently
articulate and informative manner as to meet the notice
requirement of [35 U.S.C.] § 132. As the statute itself instructs,
the examiner must “notify the applicant,” “stating the reasons for
such rejection,” “together with such information and references
as may be useful in judging the propriety of continuing
prosecution of his application.” 35 U.S.C. § 132.
In re Jung, 637 F.3d 1356, 1363 (Fed. Cir. 2011). Conversely, a prima facie
case is not established when the rejection “is so uninformative that it
prevents the applicant from recognizing or seeking to counter the grounds
for rejection.” Chester v. Miller, 906 F.2d 1574, 1578 (Fed. Cir. 1990).
Here, the Examiner has established a prima facie case because, as detailed
above, the Examiner provides sufficient explanation of the rejections to put
Appellant on notice and enable Appellant to respond.
Indeed, Appellant does respond, arguing that the Examiner’s proposed
combination destroys Bilinski’s principle of operation and defeats its
intended purpose. Appeal Br. 13, 20; Reply Br. 2–3. According to
Appellant, “Bilinski does not teach or suggest [] a ‘trustworthiness’ of
anything but a singular user” and “[r]eputational context of a first user
cannot be separated from that first user.” Appeal Br. 13. We best
understand Appellant’s argument to be that modifying Bilinski to consider
data relating to additional users, i.e., to “analyz[e] one or more additional
security factors which influence security for one or more additional users,
said one or more additional users not associated with the one or more
interactions of the user” as claimed, is incongruent with generating a
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reputation score of a user, and that there is, thus, no reason to make such a
modification. See Appeal Br. 12–14, 20; Reply Br. 2.
We are not persuaded. Appellant does not explain how or why the
Examiner’s proposed combination of Bilinski and Pruthi would render
Bilinski inoperable to generate a reputation score measuring trustworthiness
of a user. Furthermore, the argument that a proposed combination of
references would change a reference’s principle of operation, or render it
unsuitable for its intended purpose, is a teaching away argument. See In re
Gordon, 733 F.2d 900, 902 (Fed. Cir. 1984). The Federal Circuit has held
that “[a] reference may be said to teach away when a person of ordinary
skill, upon reading the reference, would be discouraged from following the
path set out in the reference, or would be led in a direction divergent from
the path that was taken by the applicant.” In re Kahn, 441 F.3d 977, 990
(Fed. Cir. 2006) (quoting In re Gurley, 27 F.3d 551, 553 (Fed. Cir.
1994)). Appellant has not indicated how any portion of Bilinski
discourages, criticizes, or otherwise discredits analyzing additional security
factors which influence security for additional users not associated with the
one or more interactions of the user.
As to Appellant’s argument that the Examiner is “using Appellant’s
claims and specification as a roadmap for hindsight reconstruction” (Reply
Br. 3; see Appeal Br. 18–20), Appellant does not present persuasive
argument or evidence that the Examiner’s rejection is based on knowledge
gleaned only from Appellant’s disclosure or based on knowledge beyond the
level of ordinary skill in the art at the time of the invention. See Final Act.
7; In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971). Nor does
Appellant address the motivation to combine cited by the Examiner. As
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such, we are not persuaded by Appellant that the combination of Bilinski
and Pruthi is based on impermissible hindsight.
Appellant repeatedly refers to its “prior supplied arguments” from
“prior cycle[s] of examination,” arguing that the Examiner has failed to fully
address Appellant’s past arguments against past rejections and improperly
deemed them moot in view of newly applied grounds of rejection. Appeal
Br. 12, 14–17; Reply Br. 3. According to Appellant, past arguments
Appellant made against past rejections still apply to the current rejection on
appeal due to overlapping issues between the past and current rejections. Id.
at 12, 14–16, 19–20.
We do not consider allusions to arguments made in prior prosecution,
as they are insufficient to inform us of the substance of Appellant's
challenges to the specific findings in the Final Office Action on appeal. And
we are not bound to search the record for past arguments made by Appellant
prior to the Appeal Brief in order to ferret out arguments that may still apply
to the pending claims and rejections on appeal. An appeal brief must
contain the arguments in support of Appellant's contention that the Examiner
erred in the rejection on appeal. See 37 C.F.R. § 41.37(c)(1)(iv) (“The
arguments shall explain why the examiner erred as to each ground of
rejection contested by appellant.”). Arguments “not included in the appeal
brief will be refused consideration by the Board for purposes of the present
appeal.” Id.
Because Appellant fails to establish error in the Examiner’s findings
of obviousness, we sustain the Examiner’s § 103 rejections of claims 1–4,
6–12, 14–18, and 20–23.
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CONCLUSION
The Examiner’s rejections of claims 1–4, 6–12, 14–18, and 20–23
under 35 U.S.C. § 103 are affirmed.
DECISION SUMMARY
In summary:

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).
AFFIRMED

Claims
Rejected 35 U.S.C. §
Reference(s)/
Basis Affirmed Reversed
1–4, 7–12,
15–18
103 Bilinski, Pruthi 1–4, 7–12,
15–18

6, 14, 20 103 Bilinski, Pruthi,
Sridhara
6, 14, 20
21–23 103 Bilinski, Pruthi,
Guday
21–23
Overall
Outcome
1–4, 6–12,
14–18, 20–23