Ex Parte Ciabrini et al

Patent Trials and Appeals Board

Apr 1, 2019

14412048 - (D) (P.T.A.B. Apr. 1, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/412,048 12/30/2014
132326 7590
Thompson Hine LLP
10050 Innovation Drive
Suite 400
Dayton, OH 45342-4934
04/03/2019
FIRST NAMED INVENTOR
Damien Ciabrini
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
PT1028USPC 1020
EXAMINER
CHOI, YUK TING
ART UNIT PAPER NUMBER
2153
NOTIFICATION DATE DELIVERY MODE
04/03/2019 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):
ipdocket@thompsonhine.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAMIEN CIABRINI, GUILLAUME LEGRAND,
BENOIT JANIN, LUC ISNARDY, NICOLAS MAILLOT,
CHARLES ANTOINE ROBELIN, and RUDY DANIELLO
Appeal2018-007204
Application 14/412,048
Technology Center 2100
Before JENNIFER S. BISK, LARRY J. HUME, and
JULIET MITCHELL DIRBA, Administrative Patent Judges.
DIRBA, Administrative Patent Judge.
Appeal2018-007204
Application 14/412,048
DECISION ON APPEAL 1
Appellants2 seek our review under 35 U.S.C. § I34(a) of the
Examiner's rejection of claims 16-37. We have jurisdiction under 35 U.S.C.
§ 6(b ). We affirm.
BACKGROUND
Appellants' disclosed embodiments and claimed invention relate to
pre-computing and caching database query results and keeping those results
up-to-date. Spec. 1 :4---6.
Claim 16, reproduced below, is representative of the claimed subject
matter ( emphases added to limitations discussed in this Decision):
16. A data cache platform for maintaining pre-computed
database query results computed by a computation platform based on
data maintained in the computation platform, the data cache platform
compnsmg:
at least one processor; and
a memory coupled with the at least one processor, the
memory compnsmg:
a data structure stored thereon and configured to
store a probabilistic model that models discrepancies
between the pre-computed database query results
1 This Decision uses the following abbreviations: "Spec." for the original
specification, filed Dec. 30, 2014; "Final Act." for the Final Office Action,
mailed Nov. 3, 2017; "App. Br." for Appellants' Appeal Brief, filed March
23, 2018; "Ans." for Examiner's Answer, mailed May 17, 2018; and "Reply
Br." for Appellants' Reply Brief, filed July 9, 2018. The Specification
claims the benefit of earlier filed applications, which raises a question of
whether AIA 35 U.S.C. §§ 102, 103 applies to the instant application. But
our Decision would not be affected by this issue, so we do not decide it.
2 According to Appellants, the real party in interest is Amadeus S.A.S.
App. Br. 3.
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maintained in the data cache platform and presumed
actual database query results; and
program code stored thereon and configured to be
executed by the at least one processor to cause the at least
one processor to:
determine probabilities of the pre-computed
database query results being outdated based on
the probabilistic model;
detect an asynchronous real-time event that
has a probabilistic influence on the discrepancies
between the pre-computed database query results
maintained in the data cache platform and
presumed actual database query results;
analyze whether the asynchronous real-time
event is represented in the probabilistic model;
amend the probabilities of the pre-computed
database query results being outdated if the
asynchronous real-time events is determined to be
not represented in the probabilistic model;
automatically issue re-computation orders
to the computation plaiform for updating the pre-
computed database query results based on the
probabilities of the pre-computed database query
results being outdated, wherein the pre-computed
database query results having a probability of
being outdated above a given threshold are
ordered to be re-computed; and
receive the updated pre-computed database
query results from the computation platform in
response to the re-computation orders.
App. Br. 17 (Claims App'x) (emphasis added).
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THE REJECTIONS 3
RI. Claims 16-22, 24--31, 33, and 37 stand rejected under
35 U.S.C. § 103 as obvious over the combination of Wyman et al. (US
2010/0318538 Al, published Dec. 16, 2010) and Corson et al. (US
2013/0060631 Al, published Mar. 7, 2013). Final Act. 5-19.
R2. Claims 23 and 32 stand rejected under 35 U.S.C. § 103 as
obvious over the combination of Wyman, Corson, and Tsai (US
2012/0296906 Al, published Nov. 22, 2012). Final Act. 19-21.
R3. Claims 34--36 stand rejected under 35 U.S.C. § 103 as obvious
over the combination of Wyman, Corson, and Demarcken (US
2004/0249798 Al, published Dec. 9, 2004). Final Act. 21-22.
ANALYSIS
We review the appealed rejections for error based upon the issues
identified by Appellants, and in light of the arguments and evidence
produced thereon. Ex parte Frye, 94 USPQ2d 1072, 107 5 (BP AI 2010)
(precedential). To the extent Appellants have not advanced separate,
substantive arguments for particular claims, or other issues, such arguments
are waived. 37 C.F.R. § 4I.37(c)(l)(iv).
3 The Examiner rejected claim 34 as obvious over Wyman, Corson, and
Demarcken (rejection R3). Final Act. 21. Claim 36 depends from claim 34
and thereby includes the requirements of claim 34, but claim 36 was
erroneously rejected as obvious over Wyman and Corson alone (rejection
RI). Final Act. 5. Appellants do not discuss claim 36 or identify any error
associated with this discrepancy, so we consider this to be a harmless
typographical error. This Decision lists dependent claim 36 with its
independent claim, in rejection R3.
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We have considered all of Appellants' arguments and any evidence
presented. We highlight and address specific findings and arguments for
emphasis in our analysis below.
Claim 16
Based on Appellants' arguments (App. Br. 9--15), we decide the
appeal of obviousness rejection RI of claims 17-22, 24--31, 33, and 37 on
the basis of representative claim 16. See 37 C.F.R. § 4I.37(c)(l)(iv).
Remaining claims 23, 32, and 34--36 in rejections R2 and R3 are not argued
separately, and accordingly, these claims stand or fall with the claims from
which they depend. Accordingly, we limit our discussion to independent
claim 16, and claims 17-37 stand or fall with claim 16.
Wyman fails to teach or suggest disputed limitations
Claim 16 recites: "a probabilistic model that models discrepancies
between the pre-computed database query results ... and presumed actual
database query results." App. Br. 17 (Claims App'x). The claimed data
cache platform includes program code configured to "determine
probabilities of the pre-computed database query results being outdated
based on the probabilistic model." Id.
The Examiner points to Wyman for these claim limitations. Final
Act. 2-5, 6-7. In particular, the Examiner finds Wyman's predictive search
system 102 teaches the claimed "probabilistic model," the query results
stored in the predictive cache teach the "pre-computed database query
results," and the query results generated in response to a query teach the
"presumed actual database query results." Id. at 3--4.
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Appellants allege Wyman fails to teach or suggest two claim
limitations: "pre-computed database query results" and "probabilistic
model." App. Br. 10. Appellants begin, "the Examiner appears to interpret
the predictive queries and query log of Wyman as reading on the claimed
pre-computed database query results and probabilistic model, respectively."
Id. at 10. Appellants allege these findings are in error because Wyman's
predictive queries and query log are ( or relate to) queries, not query results,
as required by the claim. Id. at 10-12.
These arguments do not persuade us of error because they fail to
address the rejection as articulated. The Examiner did not identify Wyman's
predictive queries as satisfying the claimed "pre-computed database query
results"; instead, the Examiner found the query results stored in Wyman's
predictive cache satisfy this limitation. Final Act. 3; Ans. 4. In addition, the
Examiner did not identify Wyman's query log as satisfying the claimed
"probabilistic model"; instead, the Examiner found the predictive search
system, as a whole, satisfies this limitation. Final Act. 4; Ans. 5. Appellants
fail to directly respond to the Examiner's actual findings. 4 See generally
App. Br. 9--15 (failing to address findings or relevant pages from the Final
Action); Reply. Br. 1-5 (same).
In the Reply Brief, Appellants present new arguments. Appellants
generally argue the Examiner erred by applying an "incorrect legal standard
in determining the scope of each rejected claim" by failing to consider the
4 In responding to an earlier Office Action, Appellants presented these same
incorrect assumptions to the Examiner, and the Final Action disputed these
assumptions and specifically identified the relevant teachings of Wyman.
Appellants' Response to Office Action (filed Sept. 15, 2017) at 9 (making
assumptions); Final Act. 3--4 ( clarifying rejection).
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Specification. Reply Br. 1--4. In addition, Appellants analyze the proper
construction of the claimed "presumed actual database query results," which
was not argued in the Appeal Brief, and argue Wyman fails to disclose this
limitation. Id. at 2--4; see generally App. Br.
These new arguments are untimely and need not be considered. See
37 C.F.R. § 41.41(b)(2) ("Any argument raised in the reply brief which was
not raised in the appeal brief, or is not responsive to an argument raised in
the examiner's answer ... will not be considered by the Board for purposes
of the present appeal, unless good cause is shown."). In particular, these
arguments address the rejection as originally provided in the Final Action,
rather than positions raised in the Answer (compare Final Act. 3-5, 6-7,
with Ans. 4--5), 5 and Appellants have not shown good cause for failing to
provide these arguments in the Appeal Brief.
Further, even if these arguments had not been waived, 6 we would not
have been persuaded of error because Appellants fail to explain their
allegation that the Examiner used an incorrect standard when construing
"pre-computed database query result" and "probabilistic model." Reply
Br. 1-2, 4--5. Appellants identify no specific information that should have
been (but was not) considered by the Examiner----e.g., a passage of the
Specification or a requirement imposed by the Specification-and
5 Indeed, the language quoted by the Reply Brief from the Answer often
appears word-for-word in the Final Action, except for minor clarifications,
e.g., "term" is replaced with "phrase" and "received query" is replaced with
"received query from a user." E.g., compare Reply Br. 2 (quoting Ans. 4),
with Final Act. 3 ("presumed actual database query results").
6 The Appeal Brief included no arguments regarding the claimed "presumed
actual database query results," so there is no need to articulate an alternative
finding as if this argument had not been waived.
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Appellants identify no alternative construction or substantive error in the
Examiner's interpretation of these terms. See id. Rather, Appellants simply
assert the Examiner's statements suggest the Examiner did not consider the
Specification and the knowledge of a person skilled in the art. Reply
Br. 2, 4.
Appellants correctly note that, during prosecution, claims must be
given their broadest reasonable interpretation in light of the specification as
it would be interpreted by one of ordinary skill in the art. In re Am. Acad. of
Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). But, the Examiner's
statements here are not to the contrary. See generally Ans. 4--5, 8; Final
Act. 2--4. The Examiner explains claim 16 "does not specify the
requirements of' the disputed limitations, and on that basis, the Examiner
notes the limitations have been "broadly interpreted." Ans. 4--5. The
Examiner is not required to provide a detailed claim construction for every
claim term. See In re Jung, 637 F.3d 1356, 1363 (Fed. Cir. 2011).
Accordingly, these arguments would not have persuaded us of error.
In addition, as noted above, Appellants argue Wyman does not teach
or suggest the claimed "probabilistic model" because Wyman manages
queries rather than query results. Reply Br. 4--5; see also App. Br. 11-12
(arguing Wyman's query log fails to teach this limitation). Appellants state,
"the disclosure of Wyman regarding the predictive queries lacks any
relevancy to ... query results." App. Br. 10; see id. at 12 (distinguishing
queries and query results). Appellants argue, "Wyman's system indirectly
manages the predictive search results by directly managing the associated
predictive search queries," and from this, Appellants conclude Wyman fails
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to model discrepancies between the two types of query results, as required
by the claim. Reply Br. 5. These arguments do not persuade us of error.
In particular, we are not persuaded that Wyman's predictive queries
"lack[] any relevancy to" the predictive results, as Appellants contend. Id.
at 10. The Examiner found Wyman's predictive cache stores the queries and
their results "together as a predictive search result." Ans. 5, 7 (emphasis
omitted) ( citing Wyman ,r,r 42, 57, Fig. 2, step 208). Indeed, Wyman's
"predictive search results" may include both the predictive query and at least
one document (i.e., result). E.g., Wyman ,r 42. Wyman seeks to "associate a
received query with the predictive search result" and "provide the predictive
search result as a search result of the received query." Id. at Abstract.
Accordingly, Wyman's discussion of queries is intertwined with Wyman's
discussion of query results.
The Examiner found Wyman models the differences between the two
types of query results: the actual results and the predictive results. Final
Act. 6 (citing Wyman ,r,r 18, 19, 28-31, 42, 43). The Examiner explained
Wyman models these differences by comparing the actual query to the
predicted queries in order to determine whether ( and to what extent) the
actual results differ from the predictive results. Id. at 4, 6; Ans. 8-10.
Appellants agree Wyman "indirectly manages the predictive search results"
through the queries rather than directly managing those results. Reply Br. 5.
But Appellants submit this fails to teach or suggest the claimed probabilistic
model "that models discrepancies between" the actual and predictive results.
Id. Stated differently, Appellants appear to distinguish Wyman because it
uses queries to model discrepancies between the results, rather than
modeling the discrepancies between those results in a more direct manner.
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However, Appellants do not point to, nor could we find, any language
in the claim that requires the claimed model to directly manage the query
results or to provide a direct comparison of some sort between the two sets
of query results. Also, Appellants do not identify, nor could we find, any
passages in the Specification that would justify concluding the claim
includes such a requirement. Accordingly, we conclude the broadest
reasonable interpretation of claim 16 does not require the claimed model to
directly manage the query results or to provide a direct comparison between
the sets of query results, as asserted by Appellants.
Therefore, based upon the findings above, on this record, we are not
persuaded of error in the Examiner's reliance on the cited prior art
combination to teach or suggest the disputed limitations of claim 16, nor do
we find error in the Examiner's resulting legal conclusion of obviousness.
Motivation to combine Wyman and Corson
Claim 16 recites: "automatically issue re-computation orders to the
computation platform for updating the pre-computed database query results
based on the probabilities of the pre-computed database query results being
outdated, wherein the pre-computed database query results having a
probability of being outdated above a given threshold are ordered to be re-
computed." App. Br. 17 (Claims App'x) (emphasis added).
For this limitation, the Examiner pointed to both Wyman and Corson.
Final Act. 9--10. Specifically, the Examiner found Wyman teaches issuing
orders to update the pre-computed database query results based on the
probabilities of those results being outdated. Id. at 8-9 (citing Wyman
,r,r 56, 57, 65, 71). But, the Examiner found Wyman does not explicitly use
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a threshold for these purposes, and the Examiner relied on Corson for this
aspect of the claim limitation. Final Act. 9 (citing Corson ,r 63). The
Examiner concluded it would have been obvious to modify Wyman's system
"to re-compute content in [the] cache when the content having a probability
of being outdated [is] above a given threshold, as taught by Corson, in order
to detect changes in context information and perform cache maintenance
operations." Final Act. 10.
Appellants argue the Examiner failed to articulate a reason sufficient
to support the proposed combination of Wyman and Corson. App.
Br. 13-15; Reply Br. 5-7. Specifically, Appellants argue "the Examiner
fails to explain why and how a person of ordinary skill would have combined
the elements from the cited references to arrive at Appellant's claimed
invention." App. Br. 13. (emphasis in original). According to Appellants,
the Examiner describes the results of combining the references, but fails to
provide a reason to combine the references. Id. at 14. In addition,
Appellants contend the differences between Wyman and Corson
demonstrate error in the rejection. Id. at 14--15; Reply Br. 6-7.
In rejecting claims under 35 U.S.C. § 103, the examiner bears the
initial burden of establishing a prima facie case of obviousness. In re
Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992); see also In re Piasecki, 745
F.2d 1468, 1472 (Fed. Cir. 1984). An Examiner's rejection establishes a
prima facie case when it provides notice of the reasons for the rejection, and
the rejection is deficient when it of "is so uninformative that it prevents the
applicant from recognizing and seeking to counter the grounds for
rejection." In re Jung, 637 F.3d 1356, 1362 (Fed. Cir. 2011) (citations
omitted). If this initial burden is met, the burden of coming forward with
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evidence or argument shifts to Appellants. See Oetiker, 977 F .2d at 1445;
see also Piasecki, 745 F.2d at 1472. Obviousness is then determined on the
basis of the evidence as a whole and the relative persuasiveness of the
arguments. Id. 7
Appellants contend the Examiner failed to provide "any explanation"
of the rationale, suggesting the Examiner failed to establish a prima facie
case. App. Br. 13. However, the Examiner provided sufficient notice of the
reasons for the rejection, explaining a person of skill would have been
motivated to modify Wyman's system to include Corson's threshold in order
to detect relevant changes and perform cache maintenance operations. Final
Act. 10. This is sufficient to make a prima facie case, and we are not
persuaded by Appellants' apparent argument to the contrary.
With regard to the substance of the obviousness rejection, as noted
above, Appellants contend it would not have been obvious to combine
Wyman and Corson because of the differences between these references.
App. Br. 14--15. Specifically, Appellants allege "Wyman manages a cache
using contextual information pertaining to the cached data itself, whereas
Corson manages a cache using contextual information pertaining to a
consumer of the cached data." Id. (emphasis added); see Reply. Br. 6-7
( arguing updates to the cache are based on a score associated with each
cached item, in Wyman, and with the cached items as a whole, in Corson).
7 Appellants discuss Personal Web, which holds a motivation to combine
cannot be based solely on a finding that references "could be combined."
Personal Web Tech., LLC v. Apple, Inc., 848 F.3d 987, 993 (Fed. Cir. 2017).
However, the Examiner did not rely on such a finding, but rather provided a
reason why a person of ordinary skill would have been motivated to make
the proposed combination, as explained infra.
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However, the fact that certain modifications might be required for a
person of skill to integrate the teachings of multiple prior-art references does
not mean that the combination of those references is unpredictable or cannot
support an obviousness rejection. MCM Portfolio LLC v. Hewlett-Packard
Co., 812 F.3d 1284, 1294 (Fed. Cir. 2015) ("The test for obviousness is not
whether the features of a secondary reference may be bodily incorporated
into the structure of the primary reference." (quoting In re Keller, 642 F.2d
413,425 (CCPA 1981)); In re ICON Health &Fitness, Inc., 496 F.3d 1374,
1382 (Fed. Cir. 2007) ("[W]e do not ignore the modifications that one
skilled in the art would make to a device borrowed from the prior art."); In
re Sneed, 710 F.2d 1544, 1550 (Fed. Cir. 1983) ("[I]t is not necessary that
the inventions of the references be physically combinable to render obvious
the invention under review.").
Appellants fail to show that the differences between Wyman and
Corson undermine the Examiner's findings and conclusions regarding
obviousness. For example, Appellants do not contend the proposed
combination is beyond the level of skill of one of ordinary skill in the art, or
the modifications are more than the use of known elements to yield
predictable results. Both Wyman and Corson include a cache of information
that is periodically updated to include new content. Wyman ,r 56; Corson,
Abstract. Both references update their cache with new content in order to
provide the most relevant information to users. Wyman ,r,r 5 6, 65, 71;
Corson ,r 4. The differences identified-i.e., specifics of the cache update
procedures----do not relate to the Examiner's rationale or to the disputed
claim limitations.
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The Examiner found Wyman teaches issuing orders to update the pre-
computed database query results based on the probabilities of those results
being outdated. Final Act. 8-9 (citing Wyman ,r,r 56, 57, 65, 71).
Appellants do not allege error in this factual finding. But claim 16 also
specifies these orders are issued when the "probability of being outdated [is]
above a given threshold." App. Br. 17 (Claims App'x). Wyman updates the
predictive search results to include the queries ( and associated results) that
are likely to be useful, and the query manager decides "whether, when, and
how to remove or replace a predictive query that becomes outdated."
Wyman ,r 65; see e.g., id. ,r,r 56, 71. To keep results current, Wyman scores
the queries, but does not expressly use a threshold to analyze that score. Id.
,r 64. The Examiner found Corson teaches such a threshold, and reasoned it
would have been obvious to use Corson's threshold in Wyman's system.
See Final Act. 10.
Further, the Examiner identified the purpose or reason to make this
modification-i.e., "to detect changes in context information and perform
cache maintenance operations." Id.; see KSR Int'! Co. v. Teleflex Inc., 550
U.S. 398,418 (2007) (noting importance of reason to combine or modify
references as proposed). Further, a person of ordinary skill would recognize
a threshold can be used to make a determination based on a score. See KSR,
550 U.S. at 417 ("[I]f a technique has been used to improve one device, and
a person of ordinary skill in the art would recognize that it would improve
similar devices in the same way, using the technique is obvious unless its
actual application is beyond his or her skill."). Accordingly, Appellants'
arguments do not persuade us of error in the factual findings or ultimate
legal conclusion of obviousness.
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In the Reply Brief, Appellants allege the proposed combination
changes the principle of operation of the prior art. Reply Br. 6-7. Although
Appellants suggest this argument is based on the Answer's characterization
of Corson, the Final Action included the same characterization. 8 Thus, this
argument addresses the rejection as originally provided in the Final Action,
rather than positions raised in the Answer ( compare Final Act. 9--10, with
Ans. 11 (including nearly identical language)), and Appellants do not show
good cause for failing to provide this argument in the Appeal Brief.
Accordingly, this new argument is untimely. See 37 C.F.R. § 41.41(b)(2)
("Any argument raised in the reply brief which was not raised in the appeal
brief, or is not responsive to an argument raised in the examiner's answer ...
will not be considered by the Board for purposes of the present appeal,
unless good cause is shown."). But, even if it had been timely, Appellants'
principle of operation argument would not have shown error in the
Examiner's rejection. Appellants cite Ratti, which discusses a "change in
the basic principles under which [the reference] was designed to operate."
In re Ratti, 270 F.2d 810, 813 (CCPA 1959). However, the differences
identified by Appellants (i.e., different ways of updating a cache) do not
constitute such a difference in basic principles. See also In re Mouttet, 686
F.3d 1322, 1332 (Fed. Cir. 2012) (finding differences between electrical and
optical circuits do not constitute a change in a principle of operation). Thus,
this argument does not persuade us of error.
8 Indeed, the language quoted from the Answer is nearly identical to the
language in the Final Action. Compare Reply Br. 6 ( quoting Ans. 11 ), with
Final Act. 9. Minor changes to the text were made in the Answer ( e.g.,
"cache replenishment operation" was changed to "cache replenishing
operation"), but these changes are not relevant to Appellants' arguments.
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Therefore, based upon the findings above, on this record, we are not
persuaded of error in the Examiner's reliance on the cited prior art
combination to teach or suggest the disputed limitations of claim 16, nor do
we find error in the Examiner's resulting legal conclusion of obviousness.
Accordingly, we sustain the Examiner's obviousness rejection of
independent claim 16, and grouped claims 17-37, which fall therewith.
DECISION
We affirm the Examiner's decision rejecting claims 16-37.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv). See 37
C.F.R. § 4I.50(f).
AFFIRMED
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