Ex Parte Leng

Patent Trial and Appeal Board

Mar 21, 2017

13637116 (P.T.A.B. Mar. 21, 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.
13/637,116 09/25/2012 Shanshu Leng AB1-0165US 4828
29150 7590
LEE & HAYES, PLLC
601 W. RIVERSIDE AVENUE
SUITE 1400
SPOKANE, WA 99201
EXAMINER
ORTIZ DITREN, BELIX M
ART UNIT PAPER NUMBER
2164
NOTIFICATION DATE DELIVERY MODE
03/23/2017 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):
lhpto@leehayes.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SHANSHU LENG
Appeal 2016-007465
Application 13/637,1161
Technology Center 2100
Before THU A. DANG, SCOTT B. HOWARD, and JOHN D. HAMANN,
Administrative Patent Judges.
HOWARD, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Final Rejection
of claims 1—20, which constitute all of the claims pending in this application.
We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.
1 Appellants identify Alibaba Group Holding Limited as the real party in
interest. App. Br. 3.
Appeal 2016-007465
Application 13/637,116
THE INVENTION
The disclosed and claimed invention is directed to a ranking and
searching method and apparatus based on interpersonal distances. Spec. 12.
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A method for ranking based on interpersonal distances,
comprising:
obtaining, by a ranking server, objects queried by a query
request initiated by a user from a user client and obtaining a
reference user group corresponding to each queried object;
obtaining, by the ranking server, interpersonal distances
between users in the reference user group and the user who
initiates the query request, and obtaining rating scores of each of
the objects queried by the query request that are given by the
users in the reference user group; and
determining, by the ranking server, a user relationship
ranking index of each of the objects queried based on the
interpersonal distances and the rating scores, and ordering the
objects based on respective user relationship ranking indices of
the objects.
REFERENCES
The prior art relied upon by the Examiner as evidence in rejecting the
claims on appeal is:
Meggs US 2009/0063304 A1 Mar. 5, 2009
Kenedy US 2012/0131034 A1 May 24, 2012
Spiegel US 2012/0278317 A1 Nov. 1, 2012
REJECTIONS
Claims 1—6 and 17—20 stand rejected under pre-AIA 35 U.S.C.
§ 102(e) as being anticipated by Spiegel. Final Act. 6—13, 14—18.
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Application 13/637,116
Claims 7—16 stand rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over Spiegel in view of Meggs. Final Act. 13—14, 18—
25; Ans. 20.
Claim 6 stands rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Spiegel in view of Kenedy. Final Act. 25—27.
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments that the Examiner erred. In reaching this decision, we have
considered all evidence presented and all arguments made by Appellant. We
are persuaded by Appellant’s arguments that, based on the current record,
the Examiner erred in rejecting claims 1—9 and 17—20. However, we are not
persuaded that the Examiner erred in rejecting claims 10—16.
Claims 1—9 and 17—20
Appellant argues the Examiner erred in finding Spiegel discloses
“ordering the objects based on respective user relationship ranking indices of
the objects,” as recited in claim 1. App. Br. 10; Reply Br. 4—9. Specifically,
Appellant argues Spiegel discloses matching people, not objects. App. Br.
10; Reply Br. 5—6. Additionally, Appellant argues there is nothing in
Spiegel that discloses ordering objects based on a ranking. App Br. 10;
Reply Br. 6—9.
The Examiner finds Spiegel discloses the ordering step recited in
claim 1. Final Act. 7—8 (citing Spiegel; 26, 48, 52, 83, 85); Ans. 22—23
(citing Spiegel 26, 48, 52, 61). More specifically, the Examiner finds
because, inter alia, ‘“the matching service generates or retrieves, for each
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Application 13/637,116
user community, a list (index) of the products or other items that
characterize that community,’” Speigel teaches that “the index of each object
[is] based on the interpersonal distances and the rating scores.” Final Act. 8
(quoting Spiegel 1 85).
“A claim is anticipated only if each and every element as set forth in
the claim is found, either expressly or inherently described, in a single prior
art reference.” Verdegaal Bros. v. Union Oil Co. of California, 814 F.2d
628, 631 (Fed. Cir. 1987). However, “the reference need not satisfy an
ipsissimis verbis test.” In re Cleave, 560 F.3d 1331, 1334 (Fed. Cir. 2009)
(internal quotation marks omitted). Moreover, “it is proper to take into
account not only specific teachings of the reference but also the inferences
which one skilled in the art would reasonably be expected to draw
therefrom.” In re Preda, 401 F.2d 825, 826 (CCPA 1968); In re Paulsen, 30
F.3d 1475, 1480 (Fed. Cir. 1994) (holding that prior art references must be
“considered together with the knowledge of one of ordinary skill in the
pertinent art”).
We are persuaded by Appellant’s arguments as the Examiner has not
identified sufficient evidence or provided sufficient explanation as to how
Spiegel discloses “ordering the objects based on respective user relationship
ranking indices of the objects,” as recited in claim 1. Spiegel is directed to
matching users together, not generating a list of ranked objects in response
to a query. See Spiegel Abstract (“A computer-implemented matching
service matches users to other users, and/or to user communities, based at
least in part on a computer analysis of event data reflective of user
behaviors.”), 13 (“The present invention relates to social networking
systems, and to associated data mining methods for identifying people
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Application 13/637,116
having similar interests or characteristics.”). To the extent the cited sections
discuss objects, it is in terms items used to determine whether a person or a
group is a match. See id. at | 83. The sections of Spiegel relied on by the
Examiner do not disclose ordering objects based on ranking.
Accordingly, the Examiner’s finding that Spiegel discloses ordering
step is in error because it is not supported by a preponderance of the
evidence. See In re Caveney, 761 F.2d 671, 674 (Fed. Cir. 1985)
(Examiner’s burden of proving non-patentability is by a preponderance of
the evidence); see also In re Warner, 379 F.2d 1011, 1017 (CCPA 1967)
(“The Patent Office has the initial duty of supplying the factual basis for its
rejection. It may not, because it may doubt that the invention is patentable,
resort to speculation, unfounded assumptions or hindsight reconstruction to
supply deficiencies in its factual basis.”). Because we agree with at least one
of the dispositive arguments advanced by Appellant, we need not reach the
merits of Appellant’s other arguments.
Accordingly, we are constrained on this record to reverse the
Examiner’s rejection of claim 1, along with the rejections of claim 17, which
recites a limitation commensurate in scope to the disputed limitation
discussed above, and dependent claims 2—5 and 18—20.
Moreover, because the Examiner has not shown that Kenedy or
Meggs cures the foregoing deficiencies regarding the rejection of
independent claim 1, we will not sustain the obviousness rejection of
dependent claims 6—9 for similar reasons.
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Claims 10—16
Appellant argues the Examiner erred in finding Meggs teaches
“obtaining rating scores of the reference merchants,” as recited in claim 10.
App. Br. 12-13.
The Examiner finds Meggs teachs the obtaining step recited in claim
10. Final Act. 22 (citing Meggs H 19, 21, 61, 67); Ans. 23—24. More
specifically, the Examiner finds Meggs teaches: ‘“applying an importance
rating predetermined by at least said one user’, see para. [0021], para 61,
para 67 - ranking merchants).” Final Act. 22.
Our reviewing court guides that “the question under 35 USC § 103 is
not merely what the references expressly teach but what they would have
suggested to one of ordinary skill in the art at the time the invention was
made.” Merck & Co., Inc. v. Biocraft Laboratories, Inc., 874 F.2d 804,
807—08 (Fed. Cir. 1989). Moreover, “[e]very patent application and
reference relies to some extent upon knowledge of persons skilled in the art
to complement that [which is] disclosed. . . .” In re Bode, 550 F.2d 656, 660
(CCPA 1977) (quoting In re Wiggins, 488 F.2d 538, 543 (CCPA 1973)).
Those persons “must be presumed to know something” about the art “apart
from what the references disclose.” In re Jacoby, 309 F.2d 513, 516 (CCPA
1962). Additionally, the skilled artisan is “[a] person of ordinary creativity,
not an automaton.” KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007).
Furthermore, there is no requirement in an obviousness analysis for the prior
art to “contain a description of the subject matter of the appealed claim in
ipsissimis verbis.” In re May, 574 F.2d 1082, 1090 (CCPA 1978).
We are not persuaded by Appellant’s argument that the Examiner
erred. Meggs teaches ranking various merchants based on predetermined
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criteria. See Meggs H 61, 67. At a minimum, a ranking suggests that the
predetermined criteria is used to obtain a rating which is used to rank the
merchants.
Accordingly, we sustain the Examiner’s rejection of claim 10, along
with the rejection of dependent claims 11—16.
DECISION
For the above reasons, we affirm the Examiner’s decision rejecting
claims 10—16.
For the above reasons, we reverse the Examiner’s decisions rejecting
claims 1—9 and 17—20.
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-IN-PART
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