Ex Parte Kamath et al

Patent Trial and Appeal BoardDec 31, 2012

11180197 (P.T.A.B. Dec. 31, 2012)

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. 11/180,197 07/12/2005 Chandrika Kamath IL-10714B 3404 7590 12/31/2012 Eddie E. Scott Assistant Laboratory Counsel Lawrence Livermore National Laboratory P.O. Box 808, L-703 Livermore, CA 94551 EXAMINER ROSTAMI, MOHAMMAD S ART UNIT PAPER NUMBER 2156 MAIL DATE DELIVERY MODE 12/31/2012 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte CHANDRIKA KAMATH and ERICK CANTU-PAZ ____________ Appeal 2010-006819 Application 11/180,1971 Technology Center 2100 ____________ Before THU A. DANG, JAMES R. HUGHES, and GREGORY J. GONSALVES, Administrative Patent Judges. HUGHES, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1-8 and 10-17, which are all the claims remaining in the application. Claims 9 and 18-36 were cancelled during prosecution. We have jurisdiction under 35 U.S.C. § 6(b). 1 Application filed on July 12, 2005. The Real Party in Interest is Lawrence Livermore National Security, LLC and the United States of America as represented by the U. S. Department of Energy. (App. Br. 3.) Appeal 2010-006819 Application 11/180,197 2 We affirm. Invention Appellants’ invention relates to “decision trees and more particularly to a parallel object-oriented decision tree system.” (Spec. 1, ¶ [0003].)2 Representative Claim Independent claim 1, reproduced below further illustrates the invention: 1. A decision tree based data mining system for processing data; comprising: a multiplicity of processors, a multiplicity of data files including features in the data, an object oriented pattern recognition algorithms module operatively connected to said multiplicity of processors and operatively connected to said multiplicity of data files for pattern recognition by recognizing patterns among objects in the data based upon features of the data, a decision tree system including an object oriented module operatively connected to said multiplicity of processors and connected to said multiplicity of data files to read said data and partition said data files among said multiplicity of processors, an object oriented module operatively connected to said multiplicity of processors to identify said objects in the data wherein said objects include relevant features, an object oriented module operatively connected to said multiplicity of processors to extract said relevant features, 2 We refer to Appellants’ Specification (“Spec.”); Reply Brief (“Reply Br.”) filed Jan. 28, 2010; and Appeal Brief (“App. Br.”) filed July 16, 2009. We also refer to the Examiner’s Answer (“Ans.”) mailed Jan. 20, 2010. Appeal 2010-006819 Application 11/180,197 3 an object oriented module operatively connected to said multiplicity of processors to parallel sort said data using said multiplicity of processors, if sorting is necessary, an object oriented module operatively connected to said multiplicity of processors to determine the best manner to split said data according to some criterion, and an object oriented module operatively connected to said multiplicity of processors to split said data, and a data mining system, having a storage module, and an object oriented linking module for linking said decision tree system and said storage module. Rejection on Appeal The Examiner rejects claims 1-8 and 10-17 under 35 U.S.C. § 103(a) as being unpatentable over Busche (U.S. Patent No. 6,430,547 B1, issued Aug. 6, 2002), Runkler (U.S. Patent No. 7,197,504 B1, issued Mar. 27, 2007 (filed Apr. 21, 2000)) and Agrawal (U.S. Patent No. 6,003,029, issued Dec. 14, 1999). Grouping of Claims Based on Appellants’ arguments in the Brief, we will decide the appeal on the basis of representative claim 1. See 37 C.F.R. § 41.37(c)(1)(iv) (2012). ISSUES 1. Under § 103, did the Examiner err in finding that the combination of Busche, Runkler, and Agrawal would have taught or Appeal 2010-006819 Application 11/180,197 4 suggested the limitations recited in independent claim 1 and the commensurate limitation recited in independent claim 10? 2. Under § 103, did the Examiner err in combining Busche, Runkler, and Agrawal. FINDINGS OF FACT We adopt the Examiner’s findings in the Answer and the Final Office Action mailed on May 8, 2009 as our own, except as to those findings that we expressly overturn or set aside in the analysis as follows. ANALYSIS Obviousness Rejection Appellants contend, inter alia, the following: The criterion that prior art reference, or references when combined, must teach or suggest all the claim limitations has not been met. The Busche, Runkler, and Agrawal references fail to teach the limitations of Appellants’ claims 1-8 and 10-17 identified below. (App. Br. 16.) At the outset, we observe that Appellants’ arguments consist of a recitation of the claim limitations (App. Br. 17), a conclusion that the recited limitations are not taught or suggested by the cited references (App. Br. 18), and no further arguments or evidence. Based upon our review of the record before us, we find Appellants have failed to present substantive arguments supported with specific factual evidence of sufficient character and weight to persuade us of error regarding the Examiner’s findings of fact and ultimate legal conclusion of Appeal 2010-006819 Application 11/180,197 5 obviousness. Merely reiterating the language of the claim is insufficient. This form of argument does not amount to a separate patentability argument and is unpersuasive of error in the Examiner’s rejection. See Ex parte Belinne, No. 2009-004693, 2009 WL 2477843 at *3-4 (BPAI Aug. 10, 2009) (informative); see also 37 C.F.R. § 41.37(c)(iv) (“A statement which merely points out what a claim recites will not be considered an argument for separate patentability of the claim.”). Appellants’ argument “do[es] not . . . explain why the Examiner’s explicit fact finding is in error.” Belinne, 2009 WL 2477843 at *4. Mere attorney arguments and conclusory statements that are unsupported by factual evidence are entitled to little probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see also In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984), On this record, we find Appellants have failed to present substantive arguments and supporting evidence persuasive of Examiner’s error. Cf. In re Baxter Travenol Labs., 952 F.2d 388, 391 (Fed. Cir. 1991) (“It is not the function of this court to examine the claims in greater detail than argued by an appellant, looking for nonobvious distinctions over the prior art.”).3 While we have fully considered Appellants’ responses in the Reply Brief, we decline to address any new arguments not originally presented in the principal Brief and we deem these newly presented arguments to be waived. See Ex parte Borden, 93 USPQ2d 1473, 1474 (BPAI 2010) (“informative”) (absent a showing of good cause, the Board is not required to address arguments in the Reply Brief that could have been presented in the principal Brief). With respect to all claims before us on appeal, 3 Arguments not made are waived. See 37 C.F.R. § 41.37(c)(1)(iv). Appeal 2010-006819 Application 11/180,197 6 arguments which Appellants could have made but chose not to make have not been considered and are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(iv). See also In re Watts, 354 F.3d 1362, 1368 (Fed. Cir. 2004). Combinability No Reasonable Expectation of Success Similar to the above, Appellants contend “[t]here could be no combination of the Busche, Runkler, and Agrawal references that would provide a reasonable expectation of success or that would show Applicants’ invention of claims 1-8 and 10-17.” (App. Br. 24.) Appellants provide no further argument except that because the cited references do not disclose the limitations of claim 1, “there could be no combination of the references that would have reasonable expectation of success of providing Applicant’s invention of claims 1-8 and 10-17.” (Id.) For the same reasons discussed supra, we find this type of argument unavailing. Motivation to Combine References Appellants’ content that the Examiner did not provide a valid explanation of how or why the cited references would or could be combined to produce the missing claim elements. Appellants did not provide any further evidence in support of the present argument. (App. Br. 25.) We find this type of argument unavailing for the reasons discussed supra. Moreover, we find that the Examiner did provide motivation to combine the cited references. (Ans. 5 and 9.) For these reasons, we sustain the Examiner’s § 103 rejection of representative claim 1 over the combination of Busche, Runkler, and Appeal 2010-006819 Application 11/180,197 7 Agrawal. Claims 2-8 and 10-17, not argued separately, fall therewith. See 37 C.F.R. § 41.37(c)(1)(iv). CONCLUSION OF LAW Appellants have not shown that the Examiner erred in rejecting claims 1-8 and 10-17 under 35 U.S.C. § 103(a). DECISION We affirm the Examiner’s rejection of claims 1-8 and 10-17 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 llw