Cook, Charles I.

Patent Trials and Appeals Board

Dec 27, 2019

14586512 - (D) (P.T.A.B. Dec. 27, 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.
14/586,512 12/30/2014 Charles I. Cook 1404-US-U1 3168
83809 7590 12/27/2019
CenturyLink Intellectual Property LLC
Patent Docketing
1025 Eldorado Blvd.
Broomfield, CO 80021
EXAMINER
AGUIAR, JOHNNY B
ART UNIT PAPER NUMBER
2447
NOTIFICATION DATE DELIVERY MODE
12/27/2019 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):
patent.docketing@level3.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte CHARLES I. COOK
____________

Appeal 2019-001374
Application 14/586,512
Technology Center 2400
____________

Before ELENI MANTIS MERCADER, NORMAN H. BEAMER, and
GARTH D. BAER, Administrative Patent Judges.

MANTIS MERCADER, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2019-001374
Application 14/586,512

2
STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
final rejection of claims 1–9 and 11–18, which are all the pending claims.
We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.

THE INVENTION
Appellant’s claimed invention is directed to “tracking website
performance and providing a user with website performance data”
(Abstract).
Independent claim 1, reproduced below, is representative of the
subject matter on appeal:
1. A method of providing website performance data
comprising:

identifying, at a server, a first website being accessed by
a user device;

replicating the first website on a browser emulator
associated with the server;

obtaining, with the server, a first set of website
performance metrics for the first website;

executing selected performance tests on the replicated
website to determine a first set of determined performance
results;

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies Century Link Intellectual Property LLC
as the real party in interest (Appeal Br. 3).
Appeal 2019-001374
Application 14/586,512

3
including the first set of determined performance results
in the first set of website performance metrics;

obtaining, with the server, a second set of website
performance metrics for a second website having similar
content to the first website;

forwarding the first set of website performance metrics
and the second set of website performance metrics to a
performance information generator associated with the server;

determining, with the server, the second set of website
performance metrics demonstrates better performance than the
first set of website performance metrics;

generating a performance information message
containing website performance information for the first
website and the second website, based upon the first set of
website performance metrics and the second set of website
performance metrics;

transmitting the performance information message to the
user device;

determining a user device performance information; and

simultaneously displaying the performance information
message, the user device performance information, and a
display recommending the second website as an alternative
website having better performance than the first website on the
user device, substantially in real-time as the user device
accesses the first website.

Appeal Br. 37 (Claims Appendix).

Appeal 2019-001374
Application 14/586,512

4
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is the following:
Hoyer US 6,381,635 B1 Apr. 30, 2002
Donker US 2004/0107296 A1 June 3, 2004
Santos US 2004/0176992 A1 Sept. 9, 2004
Salle US 2004/0177138 A1 Sept. 9, 2004
Vasudeva US 2004/0267691 A1 Dec. 30, 2004
Lachwani US 9,274,935 B1 Mar. 1, 2016

REJECTIONS
The Examiner made the following rejections2:
Claims 1–9 and 11–18 stand rejected under 35 U.S.C. § 112(b) as
being indefinite. Final Act. 6.
Claims 1–3, 7, and 11–13 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Santos, Donker, and Lachwani. Final Act. 9.
Claims 4, 5, 14, and 15 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Santos, Donker, Lachwani, and Salle. Final Act. 13.
Claims 6 and 16 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Santos, Donker, Lachwani, and Vasudeva. Final Act. 14.
Claims 8, 9, and 17 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Santos, Donker, Lachwani, and Hoyer. Final Act. 16.

ISSUES
The issues are whether the Examiner erred in finding:

2 The rejection of claims 1–9 and 11–18 under 35 U.S.C. § 101 was
withdrawn in the Answer. See Final Act. 6, Ans. 17.
Appeal 2019-001374
Application 14/586,512

5
1. the limitation “substantially in real-time as the user device accesses
the first website” as indefinite, as recited in claim 1, and similarly recited in
independent claim 11; and
2. the combination of Santos, Donker, and Lachwani teaches or suggests
the limitations of:
replicating the first website on a browser emulator associated
with the server;
and
executing selected performance tests on the replicated website to
determine a first set of determined performance results,
as recited in independent claim 1, and similarly recited in independent claim
11.

ANALYSIS
Indefiniteness Rejection
The Examiner finds the limitation “substantially in real-time as the
user device accesses the first website” is indefinite because
it is unclear whether the phrase “substantially in real-time”
refers to nanoseconds, microseconds, milliseconds, seconds,
minutes or even hours. Therefore, the metes and bounds of the
claimed subject matter cannot be established

(Ans. 16).
Appellant argues that
[t]he Examiner approaches use of “substantially” in a vacuum.
The Examiner does not evaluate the usage of “substantially in
real-time” in light of the disclosure, and importantly in light of
the interpretation that would be given to the term by one of
ordinary skill in the art

(Reply Br. 4).
Appeal 2019-001374
Application 14/586,512

6
We agree with Appellant. While the disclosure does not appear to use
the word “substantially,” the disclosure states that “the performance
information message is displayed to the user in real time as the user accesses
the website” (Spec. ¶ 34) and further states that
[i]n certain embodiments, the pop-up message or other
performance information message will be relatively simple, and
preferably small and innocuous to facilitate display of the
message while the user is accessing a website

(Spec. ¶ 55, emphasis added). One skilled in the art would understand that
the information arrives while the user device is accessing the first website,
because the information is formatted in a manner so as not to interfere with
the user’s website access. One skilled in the art would consider the
information receipt as being “substantially in real-time.”
Accordingly, we reverse the Examiner’s indefiniteness rejection of
independent claims 1 and 11, and dependent claims 2–9 and 12–18.

Obviousness Rejection
The Examiner finds that Santos teaches that
an agent 20 simulates an example session between a website customer
34 and the website 30, which covers the claimed limitation
“replicating (simulating) the first website (website 30) on a browser
emulator associated with the server (agent 20)”

(Ans. 17, citing Santos ¶¶ 16, 20, Fig. 1), and that “agent 20 interacts with
the website 30 according to behavior model 56” (Ans. 17, citing Santos
¶¶ 18, 21, Fig. 1).

Appeal 2019-001374
Application 14/586,512

7
Appellant argues that
the Examiner continues to ignore the distinction of replicating a
website in a browser emulator — as claimed — and the simulation of
an example session between a customer and the actual website — as
taught in Santos

(Reply Br. 4). Appellant contends that “the Examiner does not refute that
the agent interacts with the actual website itself” (Reply Br. 5).
We agree with Appellant. The claimed invention emulates a website
in a browser emulator, as opposed to accessing the website as part of a
simulation. The Examiner neither acknowledges the difference, nor explains
how the combination of references teaches or suggests “replicating the first
website on a browser emulator.” None of the remaining references cures the
deficiency of Santos.
Accordingly, we are constrained by the record to reverse the
Examiner’s obviousness rejection of independent claim 1 and independent
claim 11 commensurate in scope, as well as dependent claims 2–9 and 12–
18.

CONCLUSION
The Examiner erred in finding:
1. the limitation “substantially in real-time as the user device accesses
the first website” as indefinite, as recited in claim 1, and similarly
recited in independent claim 11; and
2. the combination of Santos, Donker, and Lachwani teaches or suggests
the limitations of:
replicating the first website on a browser emulator associated
with the server;
Appeal 2019-001374
Application 14/586,512

8
and
executing selected performance tests on the replicated website to
determine a first set of determined performance results,
as recited in independent claim 1, and similarly recited in independent claim
11.

DECISION
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–9, 11–18 112(b) Indefiniteness 1–9, 11–18
1–3, 7, 11–
13
103 Santos, Donker,
Lachwani
1–3, 7, 11–
13
4, 5, 14, 15 103 Santos, Donker,
Lachwani, Salle
4, 5, 14, 15
6, 16 103 Santos, Donker,
Lachwani,
Vasudeva
6, 16
8, 9, 17 Santos, Donker,
Lachwani, Hoyer
8, 9, 17
Overall
Outcome
1–9, 11–18

REVERSED