Ex Parte Krig

Patent Trial and Appeal Board

Mar 30, 2017

13993841 (P.T.A.B. Mar. 30, 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.
13/993,841 06/13/2013 Scott A. Krig ITL.2534US (P39406) 1023
47795 7590 04/03/2017
TROP, PRUNER & HU, P.C.
1616 S. VOSS RD., SUITE 750
HOUSTON, TX 77057-2631
EXAMINER
ITSKOVICH, MIKHAIL
ART UNIT PAPER NUMBER
2483
NOTIFICATION DATE DELIVERY MODE
04/03/2017 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):
tphpto@tphm.com
Inteldocs_docketing @ cpaglobal.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SCOTT A. KRIG
Appeal 2017-000045
Application 13/993,8411
Technology Center 2400
Before STEPHEN C. SIU, LARRY J. HUME, and
TERRENCE W. MCMILLIN, Administrative Patent Judges.
HUME, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the Final
Rejection of claims 1—28. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellant, the real party in interest is Intel Corp. App. Br. 3.
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Application 13/993,841
STATEMENT OF THE CASE2
The Invention
Appellant's disclosed and claimed inventions "relate[] to encoding
video analytics results." Spec. 11.
Exemplary Claims
Claims 1, 2, 5, 6, 12, 20, and 28, reproduced below, are representative
of the subject matter on appeal (emphases added to contested limitations):
1. A method comprising:
storing information about video analytics of media in
association with the encoded media, said information including
at least one of a count of a number of frames in which an object
is depicted or a list of sequence numbers of frames depicting
the object.
2. The method of claim 1 including providing a
frame to indicate what type of video analytics information is
included with the encoded media.
5. The method of claim 4 wherein providing a frame
to identify objects includes identifying a frame of encoded
media, identifying objects in said encoded media frame, and
providing descriptors that give information about identified
objects.
6. The method of claim 1 including providing a
frame to indicate the movement of objects being tracked in the
media.
2 Our decision relies upon Appellant's Appeal Brief ("App. Br.," filed
May 18, 2016); Reply Brief ("Reply Br.," filed Sept. 21, 2016); Examiner's
Answer ("Ans.," mailed Aug. 12, 2016); Final Office Action ("Final Act.,"
mailed Feb. 22, 2016); and the original Specification ("Spec.," filed
June 13, 2013).
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12. A non-transitory computer readable medium
storing instructions that enable a computer to:
store data about video analytics of media in association
with the encoded media, said information including at least one
of a count of a number of frames in which an object is depicted
or a list of sequence numbers offrames depicting the object.
20. An encoder comprising:
a processor to store encoded media, together with video
analytics information for that encoded media, said information
including at least one of a count of a number of frames in which
an object is depicted or a list of sequence numbers of frames
depicting the object; and
a memory coupled to said processor.
28. The encoder of claim 20, said processor to provide
a frame indicating what type of video analytics information is
included with the encoded media, a frame identifying objects
within the encoded media, a frame indicating the movement of
objects being tracked in the media, a frame for metadata about
objects depicted in the media, and a frame with analytics
summary information for each of said analytics frames.
Prior Art
The Examiner relies upon the following prior art as evidence in
rejecting the claims on appeal:
Shu et al. ("Shu") US 2009/0322881 A1 Dec. 31, 2009
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Rejections on AppeaP
Rl. Claims 1—28 stand rejected under 35 U.S.C. § 101 as being
directed to non-statutory subject matter. Ans. 2; Final Act. 3.
R2. Claims 1—28 stand rejected under 35 U.S.C. § 102(b) as being
anticipated by Shu. Ans. 2; Final Act. 6.
CLAIM GROUPING
We decide the appeal of non-statutory subject matter Rejection Rl of
claims 1—28, infra.
Based on Appellant's arguments (App. Br. 7—9) and the Examiner's
rejections cited above (Final Act. 6—11), we decide the appeal of anticipation
Rejection R2 of claims 1, 4, 9-12, 14, 15, 17, 18, 20, 23, 26, and 27 on the
basis of representative claim 1; we decide the appeal of anticipation
Rejection R2 of claims 2, 3, 13,21, and 22 on the basis of representative
claim 2; we decide the appeal of anticipation Rejection R2 of claims 5, 16,
24, and 25 on the basis of representative claim 5; we decide the appeal of
anticipation Rejection R2 of claims 6—8 and 19 on the basis of representative
3 In the event of further prosecution, we invite the Examiner's attention to
the recitations of "the encoded media" (claim 1); "the encoded media" and
"said information" (claim 12) to ensure compliance with the definiteness
requirements of pre-AIA 35 U.S.C. § 112, second paragraph, or AIA 35
U.S.C. § 112(B). 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 Manual of Patent Examining Procedure (MPEP)
§ 1213.02.
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claim 6. We decide the appeal of anticipation Rejection R2 of separately
argued claim 28, infra.4
ISSUES AND ANALYSIS
In reaching this decision, we consider all evidence presented and all
arguments actually made by Appellant. We do not consider arguments that
Appellant could have made but chose not to make in the Briefs, and we
deem any such arguments waived. 37 C.F.R. § 41.37(c)(l)(iv).
We disagree with Appellant's arguments with respect to Rejection R1
of claims 1—28 and Rejection R2 of claims 1—28. We incorporate herein and
adopt as our own: (1) the findings and reasons set forth by the Examiner in
the action from which this appeal is taken, and (2) the reasons and rebuttals
set forth in the Examiner's Answer in response to Appellant's arguments.
We incorporate such findings, reasons, and rebuttals herein by reference
unless otherwise noted. We highlight and address specific findings and
arguments regarding claims 1, 2, 5, 6, 12, 20, and 28 for emphasis as
follows.
4 "Notwithstanding any other provision of this paragraph, the failure of
appellant to separately argue claims which appellant has grouped together
shall constitute a waiver of any argument that the Board must consider the
patentability of any grouped claim separately." 37 C.F.R. § 41.37(c)(l)(iv)
In addition, when Appellant does not separately argue the patentability of
dependent claims, the claims stand or fall with the claims from which they
depend. In re King, 801 F.2d 1324, 1325 (Fed. Cir. 1986); In re Sernaker,
702 F.2d 989, 991 (Fed. Cir. 1983) ("'Since neither of the parties argue
separately the patentability of each of the rejected claims, the dependent
claims will stand or fall with [the] independent claims.' In re Burckel, 592
F.2d 1175, 1178-79, 201 U.S.P.Q. 67, 70 (Cust. & Pat.App. 1979)."
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1. $ 101 Rejection R1 of Claims 1—28
Issue 1
Appellant argues (App. Br. 7; Reply Br. 1—2) the Examiner's rejection
of claims 1—28 under 35 U.S.C. § 101 as being directed to non-statutory
subject matter is in error. These contentions present us with the following
issue:
Did the Examiner err in finding the subject matter of independent
claims 1, 12, and 20, and claims depending therefrom, are non-statutory
under § 101?
Analysis
Appellant contends "[n]o abstract idea is identified in the office
action." App. Br. 7. In addition:
This seems difficult to believe given that every single
claim is rejected as containing nothing more than the abstract
idea. For example, even if the abstract idea was storing
information, the claim calls for storing information about video
analytics of the media and doing so in association with the
encoded media. The applicant is not required to guess what the
abstract idea might be. Since no abstract idea has been
identified, aprima facie rejection is not made out.
Id.
Under 35 U.S.C. § 101, an invention is patent-eligible if it claims a
"new and useful process, machine, manufacture, or composition of matter."
35 U.S.C. § 101. The Supreme Court, however, has long interpreted § 101
to include an implicit exception: "[ljaws of nature, natural phenomena, and
abstract ideas are not patentable." See, e.g., Alice Corp. Pty Ltd. v. CLS
Banklnt'l, 134 S. Ct. 2347, 2354 (2014).
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We are mindful that claim terms are not interpreted in a vacuum,
devoid of the context of the claim as a whole. See Hockerson-Halberstadt,
Inc. v. Converse Inc., 183 F.3d 1369, 1374 (Fed. Cir. 1999) ("proper claim
construction . . . demands interpretation of the entire claim in context, not a
single element in isolation."); ACTV, Inc. v. Walt Disney Co., 346 F.3d 1082,
1088 (Fed. Cir. 2003) ("While certain terms may be at the center of the
claim construction debate, the context of the surrounding words of the claim
also must be considered . . . .").
Claim 1
Claim 1 recites:
A method comprising:
storing information about video analytics of media in
association with the encoded media, said information including
at least one of a count of a number of frames in which an object
is depicted or a list of sequence numbers of frames depicting
the object.
Here, in deciding whether Appellant's claim 1 falls within the
excluded category of abstract ideas, we are guided in our analysis by the
Supreme Court's two-step framework, described in Mayo. Alice, 134 S. Ct.
2347 at 2355 (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc.,
132 S. Ct. 1289, 1296—97 (2012)). In accordance with that framework, we
first determine whether the claim is "directed to" a patent-ineligible abstract
idea. If so, we then consider the elements of the claim both individually and
as "an ordered combination" to determine whether the additional elements
"transform the nature of the claim" into a patent-eligible application of the
abstract idea. Id. This is a search for an "inventive concept," i.e., an
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element or combination of elements sufficient to ensure that the claim
amounts to "significantly more" than the abstract idea itself. (Id.)
We first note a "computer" is not even nominally recited in
Appellant's claim 1, and we find a person would also be capable of
performing the recited storing step as a mental step, or with the aid of pen
and paper. For example, we find a person can store information in a variety
of non-computerized ways, i.e., write, print, or memorize "information about
video analytics of media in association with . . . encoded media" on, for
example, a piece of paper) with a pen, within the meaning of claim 1. See
CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1375 (Fed.
Cir. 2011) ("That purely mental processes can be unpatentable, even when
performed by a computer, was precisely the holding of the Supreme Court in
Gottschalk v. Benson"). As applicable to method claim 1 on appeal, "a
method that can be performed by human thought alone is merely an abstract
idea and is not patent-eligible under § 101." Id. at 1373.5
We conclude claim 1 is directed to the abstract idea of "storing
information about video analytics." We find the method of claim 1 can be
5 See also Cybersource, 654 F.3d at 1372 ("It is clear that unpatentable
mental processes are the subject matter of claim 3. All of claim 3's method
steps can be performed in the human mind, or by a human using a pen and
paper. Claim 3 does not limit its scope to any particular fraud detection
algorithm, and no algorithms are disclosed in the T54 patent's specification.
Rather, the broad scope of claim 3 extends to essentially any method of
detecting credit card fraud based on information relating past transactions to
a particular "Internet address," even methods that can be performed in the
human mind."); see also In reNuijten, 500 F.3d 1346, 1354 (Fed. Cir. 2007)
("The four categories [of § 101] together describe the exclusive reach of
patentable subject matter. If a claim covers material not found in any of the
four statutory categories, that claim falls outside the plainly expressed scope
of § 101 even if the subject matter is otherwise new and useful.").
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performed by a person without the use of a computer and is therefore an
abstract idea beyond the scope of § 101.
Regarding prong two of the test articulated by the Supreme Court in
Alice, we further "consider the elements of each claim both individually and
'as an ordered combination' to determine whether the additional elements
'transform the nature of the claim' into a patent-eligible application." Alice,
134 S. Ct. at 2355 (quoting Mayo, 132 S. Ct. at 1298, 1297).
Claim 1 merely recites a method for "storing information about video
analytics of media in association with the encoded media, said information
including at least one of a count of a number of frames in which an object is
depicted or a list of sequence numbers of frames depicting the object."
There are no "additional elements [that] 'transform the nature of the claim'
into a patent-eligible application." Alice, 134 S. Ct. at 2355 (quoting Mayo,
132 S. Ct. at 1298, 1297). We therefore conclude the nature of claim 1 is
not transformed into a patent-eligible application of the abstract idea because
claim 1 does nothing more than simply store information.
Accordingly, as a matter of claim construction, we sustain the
Examiner's § 101 rejection of claim 1 and claims 2—11 which depend from
claim 1.
Claim 12
Independent claim 12 recites:
A non-transitory computer readable medium storing
instructions that enable a computer to:
store data about video analytics of media in association
with the encoded media, said information including at least one
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of a count of a number of frames in which an object is depicted
or a list of sequence numbers of frames depicting the object.
For the same reasons set forth above with respect to claim 1, we
conclude the nature of claim 1 is not transformed into a patent-eligible
application of the abstract idea because claim 12 does nothing more than
simply store data.
Accordingly, as a matter of claim construction, we sustain the
Examiner's § 101 rejection of claim 12 and claims 12—19 which depend from
claim 12.
Claim 20
Independent claim 20 recites:
An encoder comprising:
a processor to store encoded media, together with video
analytics information for that encoded media, said information
including at least one of a count of a number of frames in which
an object is depicted or a list of sequence numbers of frames
depicting the object; and
a memory coupled to said processor.
An invention is patent-eligible if it claims a "new and useful process,
machine, manufacture, or composition of matter." 35 U.S.C. § 101.
In contrast to claims 1 and 12, we find claim 20 is not directed to an
abstract idea. Instead, we find claim 20 is directed to a "machine" in the
context of § 101, and thus is patent-eligible under § 101.6
6 We note the type of data stored or intended to be stored by the processor
(presumably in the memory), does not confer patentability, as discussed
infra with respect to the § 102 rejection of the claims.
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Accordingly, we cannot sustain the Examiner's § 101 rejection of
claim 20 and claims 21—28 which depend therefrom.
2. $ 102(b) Rejection R2 of Claims 1. 4. 9-12. 14. 15. 17. 18. 20. 23. 26.
and 27
Issue 2
Appellant argues (App. Br. 7—8; Reply Br. —) the Examiner's rejection
of claim 1 under 35 U.S.C. § 102(b) as being anticipated by Shu is in error.
These contentions present us with the following issue:
Did the Examiner err in finding the cited prior art discloses a method
that includes the step of "storing information about video analytics of media
in association with the encoded media, said information including at least
one of a count of a number of frames in which an object is depicted or a list
of sequence numbers of frames depicting the object," as recited in claim 1?
Analysis
Appellant contends "[tjhere is no basis to suggest that a pointer [cited
in Shu by the Examiner] that points to a particular video segment somehow
counts the number of frames." App. Br. 7. Appellant cites the Specification
(| 59) in support of this argument by stating, "the L-ffame information may
be useful in determining, for example, how long a person who is being
tracked is loitering at a given location. Nothing of the sort is suggested in
any of the cited references which would require manual review of the
tracked person in order to determine that someone is loitering at a given
location." App. Br. 7—8.
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We are not persuaded by Appellant's argument. See In re Self, 671
F.2d 1344, 1348 (CCPA 1982) ("[Ajppellant's arguments fail from the outset
because . . . they are not based on limitations appearing in the claims.").
As a matter of claim construction, we find the recitation of
"information about video analytics of media in association with the encoded
media, said information including at least one of a count of a number of
frames in which an object is depicted or a list of sequence numbers of
frames depicting the object" is non-functional descriptive material, which we
give no patentable weight.
We find the claimed "information" represents data that is not recited
as imparting functionality to a machine or computer within the broad scope
of claim 1. Therefore, we conclude method claim 1 merely stores
information (i.e., "information about video analytics of media in association
with the encoded media, said information including at least one of a count of
a number of frames in which an object is depicted or a list of sequence
numbers of frames depicting the object") that is merely descriptive, and is
not actually used to perform any function, within the scope of claim 1,7
Appellant argues:
Here the action is not just storing any information, the action
that is claimed is storing information about video analytics of
media in association with the encoded media, the information
including at least one of a count of the number of frames in
which an object is depicted or a list of sequence numbers
7 Similarly, in light of Appellant's arguments (App. Br. 7—8), we find claim
12's recitation of "store data about video analytics," and claim 20's recitation
of "a processor to store encoded media, together with video analytics
information" likewise rely upon non-functional descriptive material to
distinguish over the prior art. We find these arguments to be unavailing.
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depicting the object. The Patent Office cannot meet this claim
by showing storing any information.
Reply Br. 2.
We need not give patentable weight to descriptive material absent a
new and unobvious functional relationship between the descriptive material
and the substrate. See Ex parte Nehls, 88 USPQ2d 1883, 1887—90 (BPAI
2008) (precedential); see also In reNgai, 367 F.3d 1336, 1338 (Fed. Cir.
2004); In re Lowry, 32 F.3d 1579, 1583—84 (Fed. Cir. 1994); see also Ex
parte Mathias, 84 USPQ2d 1276, 1279 (BPAI 2005) (informative)
("[Nonfunctional descriptive material cannot lend patentability to an
invention that would have otherwise been anticipated by the prior art."),
affd, 191 Fed. Appx. 959 (Fed. Cir. 2006) (Rule 36); Ex parte Curry, 84
USPQ2d 1272, 1274 (BPAI 2005) (informative) ("Nonfunctional descriptive
material cannot render nonobvious an invention that would have otherwise
been obvious."), affd, No. 06-1003 (Fed. Cir. 2006) (Rule 36). Thus, non­
functional descriptive material does not confer patentability to inventions
that are otherwise either anticipated or obvious over the prior art.
Therefore, on the record before us and under our claim construction,
buttressed by our findings of Appellant's reliance upon non-functional
descriptive material to distinguish over the cited prior art, we are not
persuaded of error in the Examiner's finding of anticipation. Therefore, we
sustain the Examiner's anticipation rejection of independent claim 1, and
grouped claims 4, 9—12, 14, 15, 17, 18, 20, 23, 26, and 27 which fall
therewith. See Claim Grouping, supra.
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3. $ 102(b) Rejection R2 of Claims 2, 3, 13, 21, and 22
Issue 3
Appellant argues (App. Br. 8; Reply Br. 3) the Examiner's rejection of
claim 2 under 35 U.S.C. § 102(b) as being anticipated by Shu is in error.
These contentions present us with the following issue:
Did the Examiner err in finding the cited prior art discloses the
method of claim 1, that includes the step of "providing a frame to indicate
what type of video analytics information is included with the encoded
media," as recited in claim 2?
Analysis
Appellant contends claim 2 "relate[s] to providing a frame that
indicates what type of video analytics information is included with the
encoded media .... there is no indication that the encoded media [of Shu]
includes any indication of what type of video analytics information is
included therewith." App. Br. 8.
For the same reasons set forth above with respect to Issue 2, claim 1,
we find claim 2 also recites non-functional descriptive material, and is
therefore not patentable.8
Accordingly, based upon the findings above, on this record, and under
our claim construction set forth above, we are not persuaded of error in the
Examiner's reliance on the disclosure of the cited prior art to disclose the
disputed limitation of claim 2 and the resulting finding of anticipation.
Therefore, we sustain the Examiner's anticipation rejection of dependent
8 We agree with the Examiner's factual findings that Shu paragraph 92 and
Figure 9 disclose the contested limitation of claim 2. See Final Act. 7.
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claim 2, and grouped claims 3, 13,21, and 22 which fall therewith. See
Claim Grouping, supra.
4. § 102(b) Rejection R2 of Claims 5, 16, 24, and 25
Issue 4
Appellant argues (App. Br. 8) the Examiner's rejection of claim 5
under 35 U.S.C. § 102(b) as being anticipated by Shu is in error. These
contentions present us with the following issue:
Did the Examiner err in finding the cited prior art discloses the
method of claim 4, "wherein providing a frame to identify objects includes
identifying a frame of encoded media, identifying objects in said encoded
media frame, and providing descriptors that give information about
identified objects," as recited in claim 5?
Analysis
Appellant contends claim 5 "relate[s] to providing a frame that
identifies objects in a particular media frame and provides descriptors that
give information about the identifying objects." App. Br. 8.
Appellant alleges Shu paragraph 91 cited by the Examiner "does not
provide any information that identifies the object or that provides descriptors
that give information about those identified objects." Id.
The Examiner finds, and we agree, Shu paragraph 91 discloses the
track data includes a pointer to a video segment containing the object, which
can also include "location data, trajectory data, motion data, visual features
(for example color texture and shape) and object class or identity[.]" Id.
(quoting Shu 191). In agreement with the Examiner, we find this disclosure
discloses the contested limitation of claim 5.
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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 disclosure of the cited
prior art to disclose the disputed limitation of claim 5 or in the resulting
finding of anticipation. Therefore, we sustain the Examiner's anticipation
rejection of dependent claim 5, and grouped claims 16, 24, and 25 which fall
therewith. See Claim Grouping, supra.
5. $ 102(b) Rejection R2 of Claims 6, 7, 8, and 19
Issue 5
Appellant argues (App. Br. 8) the Examiner's rejection of claim 6
under 35 U.S.C. § 102(b) as being anticipated by Shu is in error. These
contentions present us with the following issue:
Did the Examiner err in finding the cited prior art discloses the
method of claim 1, that includes the step of "providing a frame to indicate
the movement of objects being tracked in the media," as recited in claim 6?
Analysis
Appellant contends "[cjlaim 7 dependent on claim 6 calls for
'providing a confidence indicator to indicate how certain is an identification
of an object in the media.'" App. Br. 8. Further, "[cjlaim 6 is rejected on
Shu, paragraph 91. Aprima facie rejection is plainly not made out since
even in the material cited has no bearing on the claim limitation." Id. This
is the totality of Appellant's arguments.
Regarding these claims, Appellant recites the limitation in claim 7,
and contends the references do not teach the limitation. Id. Such statements
are not considered to be arguments. 37 C.F.R. § 41.37(c)(l)(iv) ("A
statement which merely points out what a claim recites will not be
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considered an argument for separate patentability of the claim."; In re Lovin,
652 F.3d 1349, 1357 (Fed. Cir. 2011) ("[W]e hold that the Board reasonably
interpreted Rule 41.37 to require 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."). Thus, we do
not find Appellant's arguments to be persuasive.
Therefore, based upon the findings above, on this record, and under
our claim construction, we are not persuaded of error in the Examiner's
reliance on the disclosure of the cited prior art to disclose the disputed
limitation of claim 7 and the resulting finding of anticipation. Therefore, we
sustain the Examiner's anticipation rejection of dependent claim 7, and
grouped claims 6, 8, and 19 which fall therewith. See Claim Grouping,
supra.
6. $ 102(b) Rejection R2 of Claim 28
Issue 6
Appellant argues (App. Br. 8) the Examiner's rejection of claim 28
under 35 U.S.C. § 102(b) as being anticipated by Shu is in error. These
contentions present us with the following issue:
Did the Examiner err in finding the cited prior art discloses the
encoder of claim 20, wherein the processor "provide[s] a frame indicating
what type of video analytics information is included with the encoded
media, a frame identifying objects within the encoded media, a frame
indicating the movement of objects being tracked in the media, a frame for
metadata about objects depicted in the media, and a frame with analytics
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summary information for each of said analytics frames," as recited in
claim 28?
Analysis
Appellant lists the various frames recited in claim 28, enumerated (1)
through (5) (App. Br. 9), and contends "[t]he provision of separate frames
for each of these types of data is nowhere suggested in the reference. Nor
does any reference including Shu teach items number (1), (2) and (5)
above." App. Br. 9.
We find claim 28 represents, at least in part, the combination of
limitations in dependent claims 2, 5, and 6. We agree with and adopt as our
own the Examiner's findings in this regard. Final Act. 11.
Moreover, similar to claim 1, we again find Appellant is attempting to
distinguish claim 28 over the cited prior art by arguing the type of data
stored. We find the recited data in claim 28 is merely non-functional
descriptive material, which does not impart functionality to the encoder
comprising a processor and memory within the scope of claim 28.
Therefore, based upon the findings above, on this record, and under
our claim construction, we are not persuaded of error in the Examiner's
reliance on the disclosure of the cited prior art to disclose the disputed
limitations of claim 28 and the resulting finding of anticipation. Therefore,
we sustain the Examiner's anticipation rejection of dependent claim 28.
REPLY BRIEF
To the extent Appellant may advance new arguments in the Reply
Brief (Reply Br. 1—4) not in response to a shift in the Examiner's position in
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the Answer, we note arguments raised in a Reply Brief that were not raised
in the Appeal Brief or are not responsive to arguments raised in the
Examiner's Answer will not be considered except for good cause (see 37
C.F.R. § 41.41(b)(2)), which Appellant has not shown.
CONCLUSIONS
(1) The Examiner did not err with respect to Non-Statutory Subject
Matter Rejection R1 of claims 1—19 under 35 U.S.C. § 101, and we sustain
the rejection.
(2) The Examiner erred with respect to Non-Statutory Subject
Matter Rejection R1 of claims 20—28 under 35 U.S.C. § 101, and we do not
sustain the rejection.
(3) The Examiner did not err with respect to anticipation Rejection
R2 of claims 1—28 under 35 U.S.C. § 102(b) over the cited prior art of
record, and we sustain the rejection.
Because we have affirmed at least one ground of rejection with
respect to each claim on appeal, we affirm the Examiner's decision. See 37
C.F.R. § 41.50(a)(1).
DECISION
We affirm the Examiner's decision rejecting claims 1—28.
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. § 41.50(f).
AFFIRMED
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