Ex Parte Rogers et al

Patent Trial and Appeal Board

Apr 29, 2016

11853619 (P.T.A.B. Apr. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
111853,619 09/11/2007 Timothy A. Rogers
87084 7590 05/03/2016
G TC Law Group PC & Affiliates
c/o CPA Global
P.O. Box 52050
Minneapolis, MN 55402
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
HMC0-0002-PlO 3344
EXAMINER
FRISBY, KESHA
ART UNIT PAPER NUMBER
3715
NOTIFICATION DATE DELIVERY MODE
05/03/2016 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):
j sammartin@gtclawgroup.com
lhohn@gtclawgroup.com
gtcdocketing@cpaglobal.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TIMOTHY A. ROGERS, JOHN BOSKO,
COREY S. O'BRIEN, and RAGHUBIR S. MUTUM
Appeal2013-010551
Application 11/853,619
Technology Center 3700
Before JOHN C. KERINS, BRANDON J. WARNER, and
LISA M. GUIJT, Administrative Patent Judges.
WARNER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Timothy A. Rogers et al. ("Appellants")1 appeal under 35 U.S.C.
§ 134(a) from the Examiner's decision rejecting claims 36-55, which are all
the pending claims. See Appeal Br. 16; Reply Br. 6. We have jurisdiction
over the appeal under 35 U.S.C. § 6(b). An oral hearing was held on
April 21, 2016.
We REVERSE.
According to Appellants, the real party in interest is Houghton Mifflin
Harcourt Publishing Company. Appeal Br. 2.
Appeal2013-010551
Application 11/853,619
CLAIMED SUBJECT MATTER
Appellants' disclosed invention "generally relates to computerized
testing using a networked platform, such as the Internet, and it more
specifically relates to polling in online testing." Spec. i-f 5. Claims 36 and
46 are independent. Claim 36, reproduced below with emphasis added, is
illustrative of the subject matter on appeal.
36. A method comprising:
logging a test taker into an online testing platform prior
to beginning an online test;
using a web browser in association with a computing
facility;
polling the web browser to obtain polled data relating to
the test taker's progress in the online test; and
saving the polled data in preparation of an online testing
platform failure event and providing the polled data to a
recovery facility, forming recovered data, for recovering partial
test results indicative of the test taker's progress leading up to
the failure event.
EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Ashley US 2004/0229199 Al Nov. 18, 2004
REJECTION
The following rejection is before us for review: Claims 36-55 stand
rejected under 35 U.S.C. § 102(b) as anticipated by Ashley.
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Appeal2013-010551
Application 11/853,619
ANALYSIS
Independent claim 36 recites, in relevant part, a method that includes
''polling the web browser to obtain polled data relating to the test taker's
progress in the online test," and then "saving the polled data in preparation
of an online testing platform failure event and providing the polled data to a
recovery facility." Appeal Br., Claims App. (emphasis added). Independent
claim 46 recites a machine readable medium with instructions to perform a
method including the same relevant steps. See id. Appellants argue that
Ashley does not disclose these limitations directed to polling a web browser
to obtain polled data, and then saving that data. See Appeal Br. 6-10; Reply
Br. 2---6. We agree.
With respect to these limitations, the rejection relies on Ashley for
disclosing such steps. Final Act. 2 (citing Ashley i-fi-136, 132, 1454).
Appellants assert that such reliance is improper because the cited passages
from Ashley discuss monitoring student progress through an exam and
ensuring data continuity in the event of power loss or other interruption, but
do not disclose that either process is accomplished through the use of polling
the web browser, as recited in the claims. See Appeal Br. 7-9. We agree
with Appellants that, even though one of the goals disclosed in Ashley may
be similar (e.g., continuity through and recovery from a loss of power of
other unexpected interruption), such a desired feature is not disclosed as
resulting from a server polling a web browser, as required by the claims.
See Ashley i-fi-f 131-33.
In response to Appellants' arguments, the Examiner takes the position
that "the broadest reasonable interpretation of 'polling' is 'sampling' or
'collection of data."' Ans. 7. Further, the Examiner states that, in detecting
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Appeal2013-010551
Application 11/853,619
any system failures or connection problems, Ashley's system "inherently
perform[ s] sampling or collecting of data during monitoring and tracking to
determine if any system failures or connection problems arise." Id. at 9.
Based on this interpretation of polling, the Examiner concludes that, because
"[t]he computers of the Ashley system are in constant communication with
one another," they "are 'polling' each other for information." Id. at 7. But
the Examiner does not provide sufficient evidence that such constant
communication required to accomplish this continuity goal in Ashley is
necessarily done by polling, let alone by polling a web browser, as required
by the claims. Thus, this conclusion is a non sequitur that is unsupported by
the evidence.
Although the Examiner is correct that Appellants' Specification
describes various uses of polling (see Ans. 7 (citing Spec. i-fi-1 62, 65) ), the
scope of the claims plainly requires a specific use-namely, "polling the
web browser to obtain polled data relating to the test taker's progress in the
online test" (Appeal Br., Claims App. (emphasis added)). Appellants
correctly acknowledge that Ashley discloses that test stations (web
browsers) poll a server. See Reply Br. 3 (citing Ashley i-f 121 ); see also
Ashley i-f 109. Nevertheless, Appellants also correctly note that such
disclosures do not encompass polling in the opposite direction (a server
polling a web browser to obtain data therefrom), as expressly required by the
claims. See Reply Br. 3. In other words, the present claims require more
than generic electronic communication generally, or even "polling"
generally-the claims require the directional communication of polling a
web browser, as discussed supra.
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Appeal2013-010551
Application 11/853,619
Neither the rejection nor the clarifications offered in the Examiner's
Answer adequately identifies how Ashley purportedly discloses the required
communication of a server polling a web browser, and such directional
polling as claimed is not otherwise self-evident from the record. The cited
portions of Ashley relied upon do not include disclosures of the directional
communication of a server polling a web browser (and, in fact, disclose the
opposite), and therefore fall short of disclosing this claimed feature.
Accordingly, based on the record before us-because an anticipation
rejection requires a finding in a single reference of each and every limitation
as set forth in the claims-we cannot sustain the rejection of independent
claims 36 and 46, or of their respective dependent claims, as anticipated by
Ashley.
DECISION
We REVERSE the Examiner's rejection of claims 36-55.
REVERSED
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