Ex Parte Lambert et al

Patent Trial and Appeal Board

Sep 24, 2013

11478800 (P.T.A.B. Sep. 24, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD

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Ex parte JOHN H. LAMBERT, GEORGE SEMECZKO, and
GEERT ENGELS
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Appeal 2011-002636
Application 11/478,800
Technology Center 2100
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Before ROBERT E. NAPPI, CAROLYN D. THOMAS, and
BARBARA A. PARVIS, Administrative Patent Judges.

PARVIS, Administrative Patent Judge.

DECISION ON APPEAL

Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1–20. We have jurisdiction under 35 U.S.C.
§ 6(b). We AFFIRM-IN-PART.

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STATEMENT OF THE CASE
Appellants’ invention relates to a system for and method of enhancing
web page delivery and visitor tracking. Abstract.

Claims 1, 8 and 11 are illustrative:

1. A method, comprising:
receiving a request for a web page content from a human
visitor;
redirecting the human visitor to a web page in an existing
web site;
identifying a source link from which the request from the
human visitor was received; and
tracking the human visitor across a plurality of web pages
via one or more requests for image data.

8. A method, comprising:
receiving an incoming request for image data;
determining that a new visitor initiated the incoming
request where a user identification tag is not provided with the
incoming request;
creating a new tag for the new visitor;
including the new tag in one or more return header
provided to the new visitor;
receiving subsequent requests including the new tag; and
using the incoming request for image data and the
subsequent requests to track pages visited by the visitor.

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11. A method of tracking web site visitors comprising:
placing an image marker on a web page using an HTML
image reference, wherein a URL within the HTML image
reference requires a redirection to a real image file that is
invisible, and wherein the URL requires a cookie to be
associated with an image request;
receiving a request for web page content from the visitor;
associating a cookie and redirect image pair with a visitor
to identify a visitor and log a path of the visitor through
multiple web pages;
tracking the visitor using redirection and image markers.

REJECTIONS
Claims 4 and 7 stand rejected under 35 U.S.C. § 112, second
paragraph, as indefinite. Ans. 3.
Claims 1–6 and 11–16 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Allen (U.S. 2005/0081140 A1, Apr. 14, 2005) and
Yacoby (U.S. 6,516,311 B1, Feb. 4, 2003). Ans. 4-15.
Claim 7 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Allen, Yacoby, and Hansen (U.S. 6,449,604 B1, Sep. 10,
2002). Ans. 25-26.
Claims 8–10 and 17–20 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Allen and Hansen. Ans. 16-26.

ISSUES
Claims 1–7
1. Did the Examiner err in finding that the combination of Allen
and Yacoby teaches:
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redirecting the human visitor to a web page in an existing
web site;
identifying a source link from which the request from the
human visitor was received; and
tracking the human visitor across a plurality of web pages
via one or more requests for image data,
as recited in independent claim 1?
2. Did the Examiner err in rejecting claims 4 and 7 under 35
U.S.C. § 112, second paragraph, as being indefinite?

With respect to the Examiner’s rejection under 35 U.S.C. § 103(a),
dependent claims 2–5 and 7, are not separately argued (App. Br. 11, 14).
Thus, the issue presented for these claims is the same as the issue presented
for claim 1. Also, Appellants’ arguments with respect to dependent claim 6
present us with the same issue as the issue presented for claim 1.

Claims 8–10 and 17–20
Did the Examiner err in finding that the combination of Allen and
Hansen teaches “using the incoming request for image data and the
subsequent requests to track pages visited by the visitor,” as recited in
independent claim 8, and similarly recited in independent claim 17?

Dependent claims 9, 10, and 18–20 are not separately argued (App.
Br. 16). Thus, the issue presented for these claims is the same as the issue
presented for claims 8 and 17.

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Claims 11–16
Did the Examiner err in finding that the combination of Allen and
Yacoby teaches “associating a cookie and redirect image pair with a visitor
to identify a visitor and log a path of the visitor through multiple web
pages,” as recited in independent claim 11?

Dependent claims 12–16 are not separately argued (App. Br. 14, 15).
Thus, the issue presented for these claims is the same as the issue presented
for claims 8 and 17.

ANALYSIS
We have reviewed the Examiner’s rejection in light of Appellants’
contentions in the Appeal Brief presented in response to the Final Office
Action and the Reply Brief presented in response to the Examiner’s Answer.
We agree with Appellants’ conclusion that the Examiner erred in rejecting
claims 11-16 under 35 U.S.C. § 103(a) as being unpatentable over Allen and
Yacoby. We disagree with Appellants’ remaining conclusions and highlight
specific findings and arguments for emphasis as follows.

Claims 1–7
1) First Issue
We are not persuaded by Appellants’ arguments that Allen describes
generating a spider-friendly main page, but not redirecting a human visitor,
as required by claim 1 (App. Br. 11; Reply Br. 2-3). We agree with the
Examiner’s finding that Allen’s description of sending a dynamic page to a
requestor at steps 214 through 218 of Figure 3 teaches redirecting the
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requestor (Ans. 32, 34-35). We also agree with the Examiner’s finding
(Ans. 4, 32, 34-45) that Allen describes redirecting a request that is received
from a human, “[a]gain referring to the flow charts shown in FIGS. 3 and 4,
the filter receives (at 200 of FIG. 3) a request from the browser of the user to
access a Web page.” Allen ¶ [0154]. Additionally, as the Examiner
correctly finds, Allen describes requests including parameter values, which
are not spiders (Ans. 27(citing Allen ¶¶ [0101]-[0109]; Figs. 3-4).
We are also not persuaded by Appellants’ arguments that the source
references described by Allen have nothing to do with a link from which a
request was received, as required by claim 1 (App. Br. 12; see also Reply
Br. 3-4). As the Examiner correctly finds, Allen describes a typical unique
web link and a reference back to an original location of a source page (Ans.
37-38 (citing Allen ¶¶ [0005]; [0024]; [0051])). We agree with the
Examiner’s finding that identifying the claimed source link would be
obvious to one of ordinary skill in the art at the time of the invention in view
of the teachings of Allen (Ans. 37-41).
Additionally, we are not persuaded by Appellants’ further arguments
that the combination of Allen and Yacoby fail to teach “tracking the human
visitor across a plurality of web pages via one or more requests for image
data,” as recited in claim 1 (App. Br. 13; Reply Br. 4). As the Examiner
correctly finds, Yacoby teaches tracking a human visitor with the aid of
cookies. Ans. 43-44 (citing Yacoby col. 14, ll. 15-20 (describing that the
“web surfing history of [an] Internet user . . . can be gathered with the aid of
cookies.”). As discussed supra, we agree with the Examiner’s finding that
Allen describes a request that is received from a human (Ans. 4). Thus, we
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agree with the Examiner’s finding that the combination of Allen and Yacoby
teach the claimed tracking.
Thus, Appellants have not persuaded us of error in the Examiner’s
rejection of independent claim 1 under 35 U.S.C. § 103(a), and dependent
claims 2–5 and 7, not separately argued (App. Br. 11, 14). Accordingly, we
sustain that rejection.
Regarding dependent claim 6, Appellants additionally argue that the
combination of Allen and Yacoby does not teach “tracking occurs across
multiple domains,” as recited in claim 6. For the reasons discussed supra
with respect to claim 1, we agree with the Examiner that Yacoby describes
tracking a human visitor. Additionally, we agree with the Examiner’s
finding that claim 6 would be obvious to one of ordinary skill in the art in
view of the combination of Allen and Yacoby (Ans. 45-47). Thus,
Appellants have not persuaded us of error in the Examiner’s rejection of
claim 6 under 35 U.S.C. § 103(a) and, therefore, we sustain that rejection.

2) Second Issue
We are not persuaded by Appellants’ arguments that a skilled artisan
would appreciate that “substantially real time,” recited in claim 4, and
“substantially unique,” recited in claim 7, have clear metes and bounds
(App. Br. 11). Appellants do not provide examples (see App. Br. 11; Reply
Br. 2) from the Specification that would place meaningful limits on the
scope of the phrases “substantially real time,” recited in claim 4, and
“substantially unique,” recited in claim 7. Appellants argue that simply
reciting the term “substantially” does not render the claim indefinite citing
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MPEP § 2173.05(b) (App. Br. 11; Reply Br. 2). However, a determination
of claim indefiniteness must be performed on a case-by-case basis.
In the Reply Brief, Appellants offer that based on a description of a
redirection process in Appellants’ Specification, one of ordinary skill in the
art would have understood that an example of “substantially in real time” is
“very quickly so as to seem nearly instantaneous, even if not actually
instantaneous i.e., truly real time.” Reply Br. 2. However, the terms “very,”
“seem,” and “nearly” are ambiguous and are provided as part of an
exemplary understanding rather than as a proposed interpretation.
Appellants’ arguments also fail to limit the claimed “substantially real time”
because a processor can be capable of processing data at a wide range of
processing rates. Additionally, claim 12 recites “real time tracking” and
claim 14 recites “generating a unique marker.” Although Appellants chose
different terminology, Appellants have not persuasively argued that, reading
the claims in light of Appellants’ Specification, one of ordinary skill in the
art would be able to differentiate between “substantially real time” and “real
time” or between “substantially unique” and “unique.” Accordingly,
Appellants have not rebutted the Examiner’s findings that one of ordinary
skill in the art would not be reasonably apprised of the metes and bounds of
the claims 4 and 7 (Ans. 30). Therefore, we are not persuaded that the
Examiner erred in rejecting claims 4 and 7 as indefinite and, therefore, we
sustain that rejection.

Claims 8–10 and 17–20
We are not persuaded by Appellants’ arguments that Hansen discloses
simply that images are used to display data relating to web site usage, which
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does not amount to a teaching of using an incoming request for image data
and subsequent requests to track pages visited by the visitor, as recited in
claim 8 (App. Br. 16; Reply Br. 6-7). As the Examiner correctly finds,
Hansen describes identifying visits and tracking visitors (Ans. 53 (citing
Hansen col. 7, l. 3 – col. 9, l. 40)). For example, Hansen describes a method
for tracking web site visitors through a common gateway interface that uses
an incoming user request, “the first time a visitor comes through the site, a
unique number is assigned to that user.” Hansen col. 8, ll. 21-22; see also
Ans. 53. Hansen also describes that subsequent user requests are used for
tracking, “[c]onsequently, all subsequent requests will go through the cgi
mechanism, and all the pages served will have their links correspondingly
altered.” Hansen col. 8, ll. 28-30; see also Ans. 53. Hansen also describes
tracking web site visits with cookies, which uses an incoming request for
data, including image data, “[w]hen a visitor first comes to a Web site, the
Web server will hand a unique ‘cookie’ to the browser.” Hansen col. 8, ll. 9-
10; see also Ans. 53. The cookie-tracking mechanism also uses subsequent
requests for tracking pages visited by the visitor, “[d]uring subsequent hits
the browser hands this cookie back to the Web server.” Hansen col. 8, ll.
11-12; see also Ans. 53. Thus, we agree with the Examiner’s finding that
claim 8 would have been obvious to one of ordinary skill in the art in view
of the combination Allen and Hansen (Ans. 52-54).
For independent claim 17, Appellants additionally argue that the
combination of Allen and Hansen does not teach “to avoid caching the
image data,” as recited in claim 17 (App. Br. 16). However, we agree with
the Examiner’s finding that Hansen describes multiple tracking mechanisms,
including a mechanism that avoids caching image data (Ans. 53).
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Thus, Appellants have not persuaded us of error in the Examiner’s
rejection of independent claims 8 and 17 under 35 U.S.C. § 103(a), and
dependent claims 9, 10, and 18–20, not separately argued (App. Br. 16).
Accordingly, we sustain that rejection.

Claims 11–16
The Examiner finds that the combination of Yacoby’s disclosure of
cookies and Allen’s description of meta-tags teaches associating a cookie
and redirect image pair with a visitor. Ans. 51. Appellants argue that the
cited references do not teach pairing cookies with images. App. Br 15.
Appellants further argue that meta-tags have no influence concerning how a
page is displayed to a user. Reply Br. 6; see also App. Br. 14. While we
agree with the Examiner to the extent that the Examiner states that Yacoby
teaches associating cookies with a visitor, the combination of Allen and
Yacoby do not refer to or explicitly discuss associating a cookie and redirect
image pair with a visitor. With respect to meta-tags, Allen states, “[u]nlike
normal HTML tags, meta-tags do not affect how a page is displayed.” Allen
¶ [0025]. Accordingly, we are constrained to reverse the rejection of
independent claim 11 under 35 U.S.C. § 103(a) based on the combination of
Allen and Yacoby. Likewise, we will not sustain the Examiner’s rejection
of dependent claims 12 through 16 because each of these claims depends
from claim 11.

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DECISION
We AFFIRM the rejection of claims 4 and 7 under 35 U.S.C. § 112,
second paragraph, as indefinite.
We AFFIRM the rejection of claims 1–6 under 35 U.S.C. § 103(a) as
unpatentable over Allen and Yacoby.
We AFFIRM the rejection of claim 7 under 35 U.S.C. § 103(a) as
unpatentable over Allen, Yacoby, and Hansen.
We AFFIRM the rejection of claims 8–10 and 17–20 under 35 U.S.C.
§ 103(a) as unpatentable over Allen and Hansen.
We REVERSE the rejection of claims 11–16 under 35 U.S.C.
§ 103(a) as being unpatentable over Allen and Yacoby.
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.
§ 1.136(a)(1)(iv).

AFFIRMED-IN-PART

ELD