Ex Parte Bell et al

Patent Trial and Appeal BoardNov 29, 2012

10431433 (P.T.A.B. Nov. 29, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte MARK ADAM BELL, CRAIG ALAN EHLKE, ELLEN MAUREEN NELSON, and BRUCE VOTIPKA ____________ Appeal 2011-006113 Application 10/431,433 Technology Center 2100 ____________ Before CARL W. WHITEHEAD JR., JAMES R. HUGHES, and GREGORY J. GONSALVES, Administrative Patent Judges. GONSALVES, Administrative Patent Judge DECISION ON APPEAL Appeal 2011-006113 Application 10/431,433 2 STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from the rejection of claims 1-22 (App. Br. 2). We have jurisdiction under 35 U.S.C. § 6(b). We affirm. The Invention Exemplary claim 1 follows: 1. A method comprising: simultaneously displaying, on a display device, a plurality of time intervals of a hierarchical service health of at least a plurality of nodes of a network, wherein the plurality of nodes of the network are arranged in a hierarchical service structure, and wherein the plurality of time intervals of the hierarchical service health convey a history of the hierarchical service health over time. Claims 1-22 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Kekic (U.S. 5,999,179) in view of Wichelman (U.S. 6,741,947 B1) and Cartsonis (U.S. 6,584,501 B1) (Ans. 3-20). ISSUES Based upon our review of the record, the dispositive issues before us are: (1) Can the claimed invention be distinguished from the prior art on the basis of the claim limitation “displaying, on a display device, a plurality of time intervals of a hierarchical service health of at least a plurality of nodes of a network, wherein the plurality of nodes of the network are arranged in a hierarchical service structure, and wherein the plurality of time intervals of the hierarchical service health convey a history of the hierarchical service health over time,” as recited in Appeal 2011-006113 Application 10/431,433 3 independent claim 1 and as similarly recited in independent claims 14, 20, and 21? (2) Are Appellants’ arguments urging patentability predicated on non-functional descriptive material? ANALYSIS We disagree with Appellants’ contentions regarding the purported patentability of claims 1-22. We adopt as our own (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken and (2) the reasons set forth by the Examiner in the Examiner’s Answer (Ans. 3-21) in response to the Appellants’ Appeal Brief and Reply Brief. For essentially the same reasons articulated by the Examiner and for the additional reasons set forth below, we concur with the Examiner’s ultimate legal conclusion of obviousness. Appellants contend that claims 1, 14, 20, and 21 are not obvious because the combination of Kekic, Wichelman and Cartsonis does not teach or suggest simultaneously displaying the hierarchical service health for a plurality of nodes “at a plurality of time intervals to convey a history of hierarchical service health over time” (App. Br. 5 (emphasis omitted)). But we conclude that Appellants’ arguments urging patentability are predicated on non-functional descriptive material, i.e., the display of service health for a plurality of nodes over a plurality of time intervals. The service health data is not executable code that changes the function of a machine. The informational content of non-functional descriptive material is not entitled to weight in the patentability analysis. See In re Lowry, 32 F.3d 1579, 1583 (Fed. Cir. 1994) (“Lowry does not claim merely the information content of a memory. . . . Nor does he seek to patent the content of Appeal 2011-006113 Application 10/431,433 4 information resident in a database.”). See also Ex parte Nehls, 88 USPQ2d 1883, 1887-90 (BPAI 2008) (precedential); Ex parte Curry, 84 USPQ2d 1272 (BPAI 2005) (informative) (Federal Circuit Appeal No. 2006-1003, aff’d, Rule 36 (June 12, 2006)); Ex parte Mathias, 84 USPQ2d 1276 (BPAI 2005) (informative), aff’d, 191 Fed. Appx. 959 (Fed. Cir. 2006). This reasoning is applicable here. Accordingly, we will sustain the Examiner’s rejection of representative claim 1 and independent claims 14, 20, and 21 which fall therewith. See 37 C.F.R. § 41.37(c)(1)(vii). We will also sustain the Examiner’s rejection of dependent claim 3 because Appellants’ arguments urging patentability of that claim are also predicated on non-functional descriptive material, i.e., the display of an array of icons (See App. Br. 10). We will also sustain the Examiner’s rejections of dependent claims 2, 4-13, 15-19, and 22 because Appellants did not set forth any separate patentability arguments for these dependent claims (See App. Br. 10-14). See 37 C.F.R. § 41.37(c)(1)(vii). DECISION We affirm the Examiner’s decision rejecting claims 1-22 as unpatentable under 35 U.S.C. § 103(a). 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 peb