Ex Parte Ciabrini et alDownload PDFPatent Trials and Appeals BoardApr 1, 201914412048 - (D) (P.T.A.B. Apr. 1, 2019) Copy Citation 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. 2 Appeal2018-007204 Application 14/412,048 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). 3 Appeal2018-007204 Application 14/412,048 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. 4 Appeal2018-007204 Application 14/412,048 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. 5 Appeal2018-007204 Application 14/412,048 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). 6 Appeal2018-007204 Application 14/412,048 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. 7 Appeal2018-007204 Application 14/412,048 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 8 Appeal2018-007204 Application 14/412,048 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. 9 Appeal2018-007204 Application 14/412,048 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 10 Appeal2018-007204 Application 14/412,048 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 11 Appeal2018-007204 Application 14/412,048 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. 12 Appeal2018-007204 Application 14/412,048 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. 13 Appeal2018-007204 Application 14/412,048 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. 14 Appeal2018-007204 Application 14/412,048 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. 15 Appeal2018-007204 Application 14/412,048 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 16 Copy with citationCopy as parenthetical citation