Ex Parte Klavins

Patent Trial and Appeal Board

Nov 14, 2017

13500237 (P.T.A.B. Nov. 14, 2017)

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.
13/500,237 06/12/2012 Maris Klavins 777052014900 7737
20872 7590 11/16/2017
MORRISON & FOERSTER LLP
425 MARKET STREET
SAN FRANCISCO, CA 94105-2482
EXAMINER
GART, MATTHEW S
ART UNIT PAPER NUMBER
3623
NOTIFICATION DATE DELIVERY MODE
11/16/2017 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):
PatentDocket @ mofo. com
pair_mofo @ firsttofile. com
EOfficeSF @mofo.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARIS KLAVINS
Appeal 2016-005014
Application 13/500,23 71
Technology Center 3600
Before MARC S. HOFF, ERIC S. FRAHM, and
JAMES W. DEJMEK, Administrative Patent Judges.
DEJMEK, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1—20. We have jurisdiction over the pending claims under 35 U.S.C.
§ 6(b).
We affirm.
1 Appellant identifies Bayer Crop Sciences as the real party in interest. App.
Br. 3.
Appeal 2016-005014
Application 13/500,237
STATEMENT OF THE CASE
Introduction
Appellant’s disclosed and claimed invention is related to
“coordinating information relating to the production and tracking of
agricultural products and any by-products thereof.” Spec. 13. In particular,
the claimed invention is directed to establishing an agricultural pedigree for
at least one agricultural product. See Spec. 116, claim 1. According to the
Specification, an agricultural pedigree
refers to the origin and history of an agricultural product, from
its earliest of stages of creation of its starting materials (e.g. for
seed-based agricultural products it would be the creation of the
seeds, for example) through its production, harvest, distribution
and final consumption, and may be considered a record of some
or all of the inputs, treatments and processes performed on or to
a given agricultural product in its production and distribution.
Spec. 116.
Claim 1 is representative of the subject matter on appeal and is
reproduced below with the disputed limitation emphasized in italics'.
1. A method for establishing an agricultural pedigree for at least
one agricultural product comprising:
a) Providing an open communication network accessible
information storage device adapted to receive input of data relating to
at least the agricultural product's production, harvesting, and
distribution from at least one, and preferably from multiple sources;
b) Inputting said data into said information storage device;
c) Storing said data; and
d) Accessing at least a portion of said data via the open
communication network, wherein the information storage device is
used as a tool for traceability of the agricultural products to provide the
ability to track the agricultural products from starting materials to end
uses;
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e) Establishing the agricultural pedigree of the agricultural
product using the information storage device and providing a defined
record of the agricultural inputs, agricultural treatments and agricultural
processes performed on or to a given agricultural product in at least
production and distribution; and
f) Implementing a decision support system formed as a
computer-based information system that supports individual,
organizational, or other decision making activities and which includes
at least one simulation model and which utilizes data within the
information storage device for at least real time decision making
wherein the decision support system accesses and manipulates data
within the information storage device and predictive modeling wherein
the decision support system accesses and manipulates data within the
information storage device for running at least one of the simulation
models.
The Examiner’s Rejections
1. Claims 1—20 stand rejected under 35 U.S.C. § 101 as being
directed to non-statutory subject matter. Final Act. 15—18.
2. Claims 1, 2, 5, 7, 8, 11, 12, 15, 17, and 18 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Maitri Thakur, Operational
techniques for implementing traceability in bulk product supply chains, 1—
163 (2010) (Ph.D. dissertation, Iowa State University) (“Thakur”);
IdentityPreserved.com, Certifiable Quality Management Systems for the U.S.
Grain and Livestock Industries, Presentation to the Agricultural Outlook
Forum (Feb. 22, 2002) (Arlington, VA) (“IP”); IdentityPreserved.com,
welcome to IdentityPreserved.com (Dec. 4, 2000),
http: / / web. archive. org/ web/
20001204212200/http://www.identitypreserved.com/ (last accessed July 1,
2013) (“IdentityPreserved.com”); and Joan Olson, Tracking seed to shelf:
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New companies and Web sites trace CM crops through the food chain,
farmindustrynews.com 20, 22 (Nov. 2000). Final Act. 19—31.
3. Claims 3 and 13 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Thakur, IP, IdentityPreserved.com, Olson, and
Natalia Yakovieva, Joseph Sarkis, and Thomas W. Sloan, Sustainable
Benchmarking of Food Supply Chains, 1-38 (Apr. 2009) (Clark Univ.)
(Working Paper 2009-02) (“Yakovieva”). Final Act. 32—33.
4. Claims 6 and 16 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Thakur, IP, IdentityPreserved.com, Olson, and
Hames et al. (US 8,489,340 B2; July 16, 2013 (PCT filed Oct. 31, 2008))
(“Hames”). Final Act. 34—35.
ANALYSIS2
Rejection under 35 U.S.C. §101
Appellant disputes the Examiner’s conclusion that the pending claims
are directed to patent-ineligible subject matter under 35 U.S.C. § 101. App.
Br. 13—32; Reply Br. 6—15. In particular, Appellant argues the Examiner
failed to consider the claims as a whole and, rather, reached the conclusion
that the claims are directed to an abstract idea based on the preamble. App.
Br. 15; Reply Br. 10-11. Additionally, Appellant asserts that, in addition to
physical aspects of the machine that implements the claimed invention, the
invention establishes an agricultural pedigree for at least one physical
2 Throughout this Decision, we have considered the Appeal Brief, filed
October 23, 2015 (“App. Br.”); the Reply Brief, filed April 8, 2016 (“Reply
Br.”); the Examiner’s Answer, mailed February 8, 2016 (“Ans.”); and the
Final Office Action, mailed March 23, 2015 (“Final Act.”), from which this
Appeal is taken.
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agricultural product. App. Br. 14, 19; see also Reply Br. 11 (“This process
tied to physical products is what makes this preamble distinct from the types
of concepts found by the courts to be abstract”). Further, Appellant
contends the decision support system “goes far beyond the mere alleged
abstract idea of ‘establishing a pedigree for an agricultural products.’” App.
Br. 16.
For the reasons discussed below, Appellant has not persuaded us of
error. The Supreme Court’s two-step framework guides our analysis. Alice
Corp. Pty. Ltd. v. CLS Bank Inti, 134 S. Ct. 2347, 2355 (2014). If a claim
falls within one of the statutory categories of patent eligibility (i.e., a
process, machine, manufacture or composition of matter) then the first
inquiry is whether the claim is directed to one of the judicially recognized
exceptions (i.e., a law of nature, a natural phenomenon, or an abstract idea).
If so, the second step is to determine whether any element, or combination of
elements, amounts to significantly more than the judicial exception.
Although the independent claims each broadly fall within the statutory
categories of patent eligibility, the Examiner determines the claims are
directed to a judicially recognized exception—i.e., an abstract idea. Final
Act. 15—18; Ans. 5—13. In particular, the Examiner finds the claims are
“directed [to] establishing an agricultural product pedigree comprising
wholly generic computers.” Final Act. 17; see also Ans. 5 (the claims “are
directed to the abstract idea of establishing an agricultural pedigree”).
Instead of using a definition of an abstract idea, “the decisional
mechanism courts now apply is to examine earlier cases in which a similar
or parallel descriptive nature can be seen—what prior cases were about, and
which way they were decided.” Amdocs (Isr.) Ltd. v. Openet Telecom, Inc.,
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841 F.3d 1288, 1294 (Fed. Cir. 2016) (citing Elec. Power Grp., LLC v.
Alstom S.A., 830 F.3d 1350, 1353—54 (Fed. Cir. 2016)); accord United
States Patent and Trademark Office, July 2015 Update: Subject Matter
Eligibility 3 (July 30, 2015), https://www.uspto.gov/sites/default/files/
documents/ieg-july-2015-update.pdf (instructing Examiners that “a claimed
concept is not identified as an abstract idea unless it is similar to at least one
concept that the courts have identified as an abstract idea”). As part of this
inquiry, we must “look at the ‘focus of the claimed advance over the prior
art’ to determine if the claim’s ‘character as a whole’ is directed to excluded
subject matter.” Affinity Labs of Tex., LLC v. DirecTV, LLC, 838 F.3d 1253,
1257 (Fed. Cir. 2016) (citations omitted).
Here, Appellant’s claims generally relate to establishing an
agricultural pedigree for an agricultural product. See, e.g., claim 1; see also
Spec. 13 (the present invention relates to “coordinating information relating
to the production and tracking of agricultural products”). This is consistent
with how Appellant characterizes the invention. See App. Br. 19 (“[T]he
present invention is directed to an agricultural business challenge of
establishing an actual agricultural pedigree for at least one physical
agricultural product.”). The agricultural pedigree is established using data
stored on an information storage device and “providing a defined record of
the agricultural inputs, agricultural treatments and agricultural processes
performed on or to a given agricultural product.” Claim 1. As is known in
the art, the information storage device “may be part of a computer” and
“references a device capable of storing information and/or data.” Spec.
1120, 41. Examples of data stored on the information storage device may
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include fuel costs, energy, fertilizer, labor, land, seeds, traits (e.g., coatings)
date/time of planting, and harvest information. Spec. Tflf 42, 51, 53.
Our reviewing court has concluded that abstract ideas include the
concepts of collecting data, recognizing certain data within the collected data
set, and storing the data in memory. Content Extraction & Transmission
LLCv. Wells Fargo Bank, N.A., 776 F.3d 1343, 1347 (Fed. Cir. 2014).
Additionally, the collection of information and analysis of information (e.g.,
recognizing certain data within the dataset) are also abstract ideas. Elec.
Power, 830 F.3d at 1353. Similarly, “collecting, displaying, and
manipulating data” is an abstract idea. Intellectual Ventures ILLC v.
Capital One Financial Corp., 850 F.3d 1332, 1340 (Fed. Cir. 2017).
Further, merely combining several abstract ideas does not render the
combination any less abstract. RecogniCorp, LLC v. Nintendo Co., Ltd., 855
F.3d 1322, 1327 (Fed. Cir. 2017) (“Adding one abstract idea ... to another
abstract idea . . . does not render the claim non-abstract.”); see also
FairWarningIP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1094 (Fed. Cir.
2016) (determining the pending claims were directed to a combination of
abstract ideas).
Here, the collection, storage, and manipulation of data related to the
agricultural product(s) is similar to ideas previously concluded by our
reviewing court to be abstract. See, e.g., Content Extraction, 776 F.3d at
1347, Electric Power, 830 F.3d at 1353, Intellectual Ventures I, 850 F.3d at
1340. Additionally, the analysis of the data by the decision support system3
3 A decision support system is defined in the Specification as “an interactive
software-based system intended to help decision makers compile useful
information from a combination of raw data, documents, personal
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is similar to the abstract idea of analyzing data using mathematical
algorithms. See Electric Power, 830 F.3d at 1353; see also Digitech Image
Techs., LLC v. Elec, for Imaging, Inc., 758 F.3d 1344, 1350 (Fed. Cir. 2014)
(concluding a process that employs mathematical algorithms to manipulate
existing information to generate additional information is not patent
eligible).
Because we determine the claims are directed to an abstract idea, we
next analyze the claims under step two to determine if there are additional
limitations that individually, or as an ordered combination, ensure the claims
amount to “significantly more” than the abstract idea. Alice, 134 S. Ct. at
2357. The implementation of the abstract idea involved must be “more than
[the] performance of ‘well-understood, routine, [and] conventional activities
previously known to the industry.’” Content Extraction, 116 F.3d at 1347—
48 (citation omitted).
Appellant argues the claims recite steps that amount to significantly
more than the abstract idea. App. Br. 19—20; Reply Br. 12—14. In particular,
Appellant contends the use of an open communication network accessible
information storage device, a tool for traceability of the agricultural
products, and a decision support system including a simulation model for
real time decision making and that also supports predictive modeling show
an improvement to another technology or technical field. App. Br. 19—20.
Here, we agree with the Examiner that the claims are not implemented
on a particular machine, but, rather, may be implemented on a generic
computing platform. Ans. 7. As described in the Specification, the open
knowledge, or business models to identity and solve problems and make
decisions.” Spec. 119.
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communication network “represents a network that can be accessed by
additional devices coming into or onto the network, such as the internet.”
Spec. 118. Further, the information storage device is a generic device for
storing information or data. Spec. H 20, 70. Additionally, the information
storage device is configured to be used as a tool for traceability. Spec. 1 32.
Also, the decisional support system and models (i.e., simulation model and
predictive model) are software-based tools used to manipulate and analyze
the data stored on the information storage device.4 See Spec. 119. “[T]he
use of generic computer elements like a microprocessor or user interface do
not alone transform an otherwise abstract idea into patent-eligible subject
matter.” FairWarning IP, 839 F.3d at 1096 (citing DDR Holdings, LLC v.
Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir. 2014)). Additionally, the
steps of gathering (e.g., collecting and inputting), storing, manipulating, and
analyzing data are well-known routine, and conventional activities. Ans. 8.
Further, we agree with the Examiner that the steps of establishing an
agricultural pedigree do not improve upon the technology or functionality of
the computer beyond the abstract idea. Ans. 7—10.
Additionally, for claims 2 through 20, Appellant recites the additional
limitation and asserts the limitation amounts to significantly more than the
alleged abstract idea of establishing an agricultural pedigree. See App.
Br. 21—32; see also Reply Br. 14. Appellant also contends that because the
Examiner relies on a secondary reference (i.e., “the primary reference does
not teach [the claimed limitation]”), it is a “clear admission” that the
4 Appellant “did not invent neither a real time decision making tool using a
DSS [(decision support system)] nor a predictive modeling tool using a
simulation model based upon a DSS.” App. Br. 39.
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limitations further define over the abstract idea and are, therefore, patent-
eligible subject matter. See, e.g., App. Br. 23.
As an initial matter, it is well settled that mere attorney arguments and
conclusory statements, which are unsupported by factual evidence, are
entitled to little probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed.
Cir. 1997). We are unpersuaded of Examiner error because, at least,
Appellant does not provide sufficient persuasive evidence or explanation as
to how the additional limitations amount to “significantly more.” See In re
Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011). Additionally, subject-matter
eligibility under 35 U.S.C. § 101 is a requirement separate from other
patentability inquiries. See Mayo Collaborative Servs. v. Prometheus Labs.,
Inc., 566 U.S. 66, 90 (2012) (recognizing that the § 101 inquiry and other
patentability inquiries “might sometimes overlap,” but that “shift[ing] the
patent-eligibility inquiry entirely to these [other] sections risks creating
significantly greater legal uncertainty, while assuming that those sections
can do work that they are not equipped to do”); Diamond v. Diehr, 450 U.S.
175, 190 (1981) (“The question ... of whether a particular invention is
novel is ‘wholly apart from whether the invention falls into a category of
statutory subject matter.’”) (citations omitted). Thus, whether the Examiner
relied on additional references as part of the § 103(a) analysis is of no
moment when considering subject-matter eligibility. Appellant’s assertions
to the contrary are not persuasive of Examiner error. Further, we agree with
the Examiner that “the dependent claims merely further limit the abstract
idea” but do not add significantly more to the abstract idea. Ans. 11.
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For the reasons discussed supra, we are unpersuaded of Examiner
error. Accordingly, we sustain the Examiner’s rejection of claims 1—20
under 35 U.S.C. § 101.
Rejections under 35 U.S.C. § 103(a)
a. Claims 1 and 11
The Examiner finds Thakur teaches or reasonably suggests, inter alia,
a simulation model and a predictive model. Final Act. 20—21 (citing Thakur
Abstract, 11, 56, 67, 73—77, 79, 121). The Examiner relies on IP to teach,
inter alia, real-time decision making. Final Act. 21—22 (citing
IdentityPreserved.com 2). In particular, Thakur teaches a multi-objective
optimization model. Thakur 67. Example objectives of such a model
include “calculating the minimum levels of lot aggregation and minimum
total cost of blending grain to meet the customer contract specifications.”
Thakur 67, 73—77. Constraints to the model may include grain availability,
grain blending costs, customer specifications, and blending requirements.
Thakur 67, 73—77. Thakur further discloses:
Sensitivity analysis is conducted to analyze the application of the
model under different operating conditions. This model provides
an effective method for minimizing the traceability effort by
minimizing the food safety risk caused by lot aggregation.
Thakur 67. Thakur also discloses the results of the model under different
operating conditions (e.g., transportation costs and contract specifications).
Thakur 78—79. Additionally, Thakur notes the model may be used as “an
important strategic tool for decision making.” Thakur 80. Thus, the
Examiner finds Thakur teaches a simulation model for decision making.
Ans. 17.
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Additionally, Thakur describes a predictive model using data mining
(i.e., extracting meaningful, previously unknown patterns from large
databases) “to predict the etiology of an outbreak [(i.e., a foodbome disease
outbreak)].” Thakur 124—125. Further, Thakur teaches that multiple models
may be combined to “provide an overall minimization of food safety risk
caused by excessive lot aggregation.” Thakur 80.
IP Track, as described in IdentityPreserved.com, is a “flexible
protocol development and monitoring system” that allows progress to be
tracked in real time. IdentityPreserved.com 2. IP Track also generates and
organizes pedigree information. IdentityPreserved.com 2, 5.
Appellant asserts Thakur “fails to teach or remotely suggest a
simulation model for real time decision making coupled with a predictive
modeling for running the simulation model as is defined in the present
claimed invention.” App. Br. 32—33, see also App. Br. 35 (asserting the
claim requires the simulation model for real time decision making is coupled
with the predictive modeling for running the simulation model); Reply
Br. 16—19. In particular, Appellant contends Thakur simply discloses
reviewing historical data. App. Br. 35; Reply Br. 16. Additionally,
Appellant acknowledges that Thakur’s multi-objective optimization model is
a decision making model, but asserts it fails to teach the claimed simulation
model coupled with the predictive modeling. App. Br. 35—36.
We are not persuaded of Examiner error. As discussed above, Thakur
teaches both a simulation model (multi-objective optimization model) and a
predictive model (based on data mining techniques). Additionally, Thakur
contemplates the combining of a plurality of models. See Thakur 80. Thus,
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we agree with the Examiner that Thakur teaches, or reasonably suggests, a
simulation model for decision making coupled with a predictive model.
Also, Appellant concedes the IdentityPreserved system “might track
and document a commodity’s seed characteristics, initial planting, growing
conditions, harvesting, shipping, storage, processing, packaging, and
ultimate sale to the consumer.” App. Br. 37—38. However, Appellant
contends the claimed method and system “does more” than the
IdentityPreserved system—specifically by providing for traceability and
agricultural pedigree. App. Br. 38. Appellant asserts the “traceability of the
present method is distinct from the traceability of the [IdentityPreserved]
system of the cited prior art which is tracking ‘identifying and tracking
valuable characteristics in crops and livestock’, namely providing the
Agricultural Pedigree for those aspects.” App. Br. 38 (emphasis omitted).
As defined in the Specification, traceability is the ability to track the
products from starting material to end users. Spec. 116. As Appellant
concedes, this is similar to the traceability provided by the IdentityPreserved
system. As also defined in the Specification, an agricultural pedigree “may
be considered a record of some or all of the inputs, treatments and processes
performed on or to a given agricultural product in its production and
distribution.” Spec. 116. The IdentityPreserved system tool, IP Track,
“acts as an effective mechanism for generating and organizing pedigree
information.” IdentityPreserved.com 2, 5 (describing IP Track as
maintaining the product’s “pedigree” and providing a Pedigree Report).
Thus, we are not apprised of Examiner error.
For the reasons discussed supra, we are unpersuaded of Examiner
error. Accordingly, we sustain the Examiner’s rejection of independent
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claim 1 and independent claim 11, argued collectively with claim 1. See
App. Br. 33.
b. Claims 2 and 12
Claim 2 depends from claim 1 and further includes “the step of
coordinating at least the production, harvesting, and distribution of the
agricultural product via the open communication network.” Claim 12
depends from claim 11 and, in addition to the limitation recited in claim 2,
recites “and receives data from agricultural equipment.”
Appellant argues the prior art does not teach coordinating the
production, harvesting, and distribution of the agricultural product, but
merely records select characteristics of these activities. App. Br. 40; Reply
Br. 20. Additionally, Appellant asserts the Examiner did not address the
additional aspect of claim 12 (i.e., receiving data from agricultural
equipment) in the rejection. App. Br. 41 (referring to Final Act. 25).
When construing claim terminology during prosecution before the
Office, claims are to be given their broadest reasonable interpretation
consistent with the Specification, reading claim language in light of the
Specification as it would be interpreted by one of ordinary skill in the art.
In re Am. Acad. ofSci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004).
Accordingly, the Examiner has interpreted coordination “to include any
effort, activity or intention to in some way bring together, organize, plan,
arrange or synchronize activities, participants or elements of agricultural
production, harvesting, distribution and processing.” Ans. 22. The
Examiner’s construction is reasonable and consistent with the Specification.
See, e.g., Spec. 128 (describing a system of coordinating the claimed
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activities by, inter alia, receiving input of data relating to agricultural
production and distribution).
Under the broadest reasonable interpretation, we agree with the
Examiner that both Thakur and IdentityPreserved.com teach coordinating at
least the production, harvesting, and distribution of the agricultural product
via an open communication network. Ans. 22. In particular,
IdentityPreserved.com teaches a communication framework and interface
for all aspects of the identity preservation process including a “pedigree”
comprising how a product is managed and when and where it gets
transferred from one location to another. IdentityPreserved.com 5; see also
IdentityPreserved.com 2 (describing IP Track, which tracks inherited
characteristics and treatment during production and handling of the
agricultural products); Thakur 118—20, Tables 9-12 (describing, for
example, start and end criteria for different phases throughout the lifecycle
of an agricultural product).
For the reasons discussed supra, we are unpersuaded of Examiner
error regarding the rejection of claim 2. Accordingly, we sustain the
Examiner’s rejection of claim 2.
We agree with Appellant that the Examiner has not made a finding
regarding the additional limitation of claim 12—i.e., “and receives data from
agricultural equipment.” We note IdentityPreserved.com describes a system
that “allows data to be input by any part of the production chain,” the
CropTouch system can input data to IP Track (which accepts input from a
range of devices) and the need for “tools and systems to make it easy to . . .
track [specialized traits] through the production process.”
IdentityPreserved.com 5,7, 14. However, the Examiner has not explained
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how IdentityPreserved.com, for example, teaches or suggests the additional
limitation of claim 12. Thus, on the record before us, we do not sustain the
Examiner’s rejection of claim 12.5
c. Claims 3 and 13
Claim 3 depends from claim 1 and further recites, in relevant part,
assigning “a sustainability rating based upon a sustainability scale.” Claim
13 recites a similar limitation.
Appellant argues “[t]he primary and secondary references teach away
from incorporating the assignment of a sustainability scale by expressly
teaching the provision of independent third party auditors to review the
subject products.” App. Br. 43; Reply Br. 23.
To the extent Appellant is arguing that Thakur and IP do not teach the
disputed limitation, we are unpersuaded of Examiner error because
Appellant’s argument is not responsive to the rejection as articulated by the
Examiner. The Examiner relies on Yakovieva to teach evaluating a
sustainability measurement and assigning a sustainability rating based upon
a sustainability scale. Final Act. 32—33 (citing Yakovieva 6—8, 10, 11, 14,
and 18); see also Ans. 23—24.
“A reference may be said to teach away when a person of ordinary
skill, upon reading the reference, would be discouraged from following the
path set out in the reference, or would be led in a direction divergent from
the path that was taken by the applicant.” Ricoh Co. v. Quanta Computer,
5 While the Board is authorized to reject claims under 37 C.F.R. § 41.50(b),
no inference should be drawn when the Board elects not to do so. See
MPEP § 1213.02.
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Inc., 550 F.3d 1325, 1332 (Fed. Cir. 2008) (quotation marks and citations
omitted). But “the mere disclosure of alternative designs does not teach
away .... just because better alternatives exist in the prior art does not
mean that an inferior combination is inapt for obviousness purposes.” In re
Mouttet, 686 F.3d 1322, 1334 (Fed. Cir. 2012 (quotation marks and citations
omitted). As explained in the Manual of Patent Examining Procedure
(“MPEP”), “[djisclosed examples and preferred embodiments do not
constitute a teaching away from a broader disclosure or nonpreferred
embodiments.” MPEP § 2123 (II) (citing In re Susi, 440 F.2d 442 (CCPA
1971)).
Here, for example, the method of claim 3 does not preclude a third
party from assigning a sustainability rating and Appellant does not identify
specific teachings or disclosures that would discourage or divert a person of
ordinary skill in the art from applying the teachings and suggestions of the
prior art as proffered by the Examiner. Thus, we do not find that a skilled
artisan would be led away from combining the references as articulated by
the Examiner. See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004) (“The
prior art’s mere disclosure of more than one alternative does not constitute a
teaching away from any of these alternatives because such disclosure does
not criticize, discredit, or otherwise discourage the solution claimed”).
Accordingly, we sustain the Examiner’s rejection of claims 3 and 13.
d. Claims 5 and 15
Claim 5 adds “the step of evaluating compliance of the agricultural
product with preexisting standards in accordance with predefined standard
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requirements.” Claim 15 recites a similar limitation but also adds that the
system “receives data from agricultural equipment.”
Appellant asserts the uses of a third party auditor, such as IP Audit as
described in IdentityPreserved.com, teaches away from an integrated system
as claimed. App. Br. 41; Reply Br. 20—21.
For similar reasons to those discussed regarding claims 3 and 13 (for
which Appellant also asserted the use of a third party, as described in the
prior art, teaches away from the claimed limitation), we are unpersuaded of
Examiner error. However, we note (similar to claim 12, discussed supra),
the Examiner has not made a finding regarding the additional limitation of
claim 15—i.e., “and receives data from agricultural equipment.”
Accordingly, on this record we sustain the Examiner’s rejection of
claim 5, but we do not sustain the rejection of claim 15.
e. Claims 6 and 16
Appellant asserts, without support, Hames, as relied on by the
Examiner, fails to teach or suggest the additional limitations of claims 6 and
16. App. Br. 43; Reply Br. 23.
We do not find Appellant’s argument persuasive of Examiner error
because 37 C.F.R. § 41.37(c)(l)(iv) requires more substantive arguments in
an Appeal Brief than a mere recitation of the claim elements and a naked
assertion that the corresponding elements were not found in the prior art.
See Lovin, 652 F.3d at 1357. Additionally, it is well settled that mere
attorney arguments and conclusory statements, which are unsupported by
factual evidence, are entitled to little probative value. Geisler, 116 F.3d at
1470.
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Appeal 2016-005014
Application 13/500,237
Accordingly, we sustain the Examiner’s rejection of claims 6 and 16.
f. Claims 7 and 17
Claim 7 and 17 recites, in relevant part,
inputting the data into the information storage device includes
inputting one or more contemporaneous inputs over time
utilizing data from agricultural equipment throughout at least the
production, harvesting, distribution, and processing of the
agricultural product, and wherein the predictive modeling
utilizes automated updates including at least i) satellite and/or
aerial data, ii) weather data and iii) planting/growing data.
Claim 17 recites similar limitations.
Appellant argues the Examiner has not articulated a finding regarding
the “coupling of agricultural equipment to the system of the present
invention to input the data in the applied art.” App. Br. 41—42; Reply
Br. 21—22. Additionally, Appellant argues the prior art does not teach or
suggest predictive modeling using the specified claimed data. App. Br. 42;
Reply Br. 22.
In response, however, the Examiner simply repeats the findings from
the Final Office Action and does not address Appellant’s arguments.
Compare Ans. 24—25, with Final Act. 29. We agree with Appellant that, as
articulated, the Examiner has not made a finding in the prior art as to
coupling the agricultural equipment to input the data.
On this record, therefore, we do not sustain the Examiner’s rejection
of claims 7 and 17.
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Appeal 2016-005014
Application 13/500,237
g. Claims 8 and 18
In relevant part, claims 8 and 18 recite a computerized interview
process for collecting selected agricultural information. Appellant asserts,
without support or evidence, that a “computerized interview process is a
known term of art” and is not taught or suggested by the prior art. App.
Br. 42 (emphasis omitted); Reply Br. 22. Appellant contends a
computerized interview process is also known as computer-assisted personal
interviewing (CAPI) and is an interviewing technique in which the
respondent or interviewer uses a computer to answer the questions. App.
Br. 42. The Specification analogizes the computerized interview process to
tax preparation software wherein a user may be prompted for requested
information. Spec. 1 68.
The Examiner broadly but reasonably interprets a computerized
interview process to encompass questionnaires, forms, surveys, etc.
Ans. 25. This is consistent with Appellant’s Specification and proffered
interpretation. The Examiner cites Olson and IdentityPreserved.com as
teaching such a process. Ans. 25 (citing Olson 20, column 3;
IdentityPreserved.com 2, 5, 16).
IP Track provides a standardized information communication
framework and communications interface that “allows data to be input by
any part of the production chain.” IdentityPreserved.com 5. Additionally,
IP Track “accepts input from a range of devices, including the company’s
own Crop Touch system, handheld computers, voice recordings and even
paper forms.” Olson 20.
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Appeal 2016-005014
Application 13/500,237
We agree with the Examiner that the IP Track and Crop Touch
systems teach or reasonably suggest the claimed computerized interview
process to input data in the system. Ans. 25.6
For the reasons discussed supra, we are unpersuaded of Examiner
error. Accordingly we sustain the Examiner’s rejection of claims 8 and 18.
DECISION
We affirm the Examiner’s decision rejecting claims 1—20 under
35U.S.C. § 101.
We affirm the Examiner’s decision rejecting claims 1, 2, 5, 8, 11, and
18 under 35 U.S.C. § 103(a).
We reverse the Examiner’s decision rejecting claims 7, 12, 15, and 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). See 37 C.F.R.
§ 41.50(f).
AFFIRMED
6 We note the Examiner erroneously refers to these tools as GroupTouch and
IPTouch (see Ans. 25), rather than Crop Touch and IP Track, but otherwise
cites to the relevant portions of Olson and IdentityPreserved.com.
21