Microsoft Technology Licensing, LLCDownload PDFPatent Trials and Appeals BoardJun 16, 20212020001995 (P.T.A.B. Jun. 16, 2021) Copy Citation 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. 14/896,344 12/04/2015 Yu Zheng 339021-US- PCT (1777.409US 1136 144365 7590 06/16/2021 Schwegman Lundberg & Woessner, P.A. P.O. Box 2938 Minneapolis, MN 55402 EXAMINER VASQUEZ, MARKUS A ART UNIT PAPER NUMBER 2121 NOTIFICATION DATE DELIVERY MODE 06/16/2021 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): SLW@blackhillsip.com usdocket@microsoft.com uspto@slwip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte YU ZHENG, XING XIE, WEI-YING MA, HSIAO-WUEN HON, and ERIC I-CHAO CHANG _____________ Appeal 2020-001995 Application 14/896,344 Technology Center 2100 ____________ Before JEAN R. HOMERE, ST. JOHN COURTENAY III, and LARRY J. HUME, Administrative Patent Judges. COURTENAY, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) from a final rejection of claims 1–15 and 17–20. The rejection of claim 16 under 35 U.S.C. § 103 was withdrawn by the Examiner and is therefore not before us. See Ans. 3. We have jurisdiction over the pending claims under 35 U.S.C. § 6(b). We affirm. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). According to Appellant, the real party in interest is Microsoft Technology Licensing, LLC. See Appeal Br. 2. Appeal 2020-001995 Application 14/896,344 2 STATEMENT OF THE CASE 2 Introduction Appellant’s claimed subject matter relates generally to “techniques for inferring air quality information for areas in a region based on historical and real-time air quality data from existing air quality monitor stations, as well as spatial and temporal data from other data sources.” Spec. ¶ 3. Representative Independent Claim 1 1. One or more non-transitory computer-readable media storing computer-executable instructions that are executed to cause one or more processors to perform acts comprising: obtaining labeled air quality index data for a pollutant in a region from one or more air quality monitor stations; extracting spatial features for the region from spatially- related data for the region, the spatially-related data including information associated with fixed infrastructures in the region; extracting temporal features for the region from temporally-related data for the region, the temporally-related data including data for the region that changes over time, wherein a temporal feature of the temporal features is determined based on changes in location data of cellular phones indicating traffic flow; applying a co-training based learning framework to co- train a spatial classifier and a temporal classifier based at least on the labeled air quality index data, the spatial features for the region, and the temporal features for the region; and 2 We herein refer to the Final Office Action, mailed Feb. 4, 2019 (“Final Act.”); Appeal Brief, filed Sept. 6, 2019 (“Appeal Br.”); the Examiner’s Answer, mailed Nov. 19, 2019 (“Ans.”); and the Reply Br., filed Jan. 16, 2020. Appeal 2020-001995 Application 14/896,344 3 generating a heat map for the region indicating suitability for building an air quality monitoring station by using the spatial classifier and the temporal classifier to generate air quality index levels for areas within the region. Appeal Br. 15, “CLAIMS APPENDIX” (disputed limitations emphasized). Patent Prior Art Evidence Name Reference Date Chapman et al. Moshe Martin US 2008/0071465 A1 US 2013/0110400 Al US 2013/0174646 Al Mar. 20, 2008 May 2, 2013 July 11, 2013 Non Patent Literature Prior Art Evidence Hanefi Bayraktar & F. S. Turalioglu, “A Kriging-based approach for locating a sampling site – in the assessment of air quality,” Stochastic Environmental Research and Risk Assessment, May 13, 2005 (“Bayraktar”). Chee-Yong Chan et al., “On High Dimensional Skylines,” International Conference on Extending Database Technology, Springer, Berlin, Heidelberg, 2006 (“Chan”). Kamal Nigam & Rayid Ghani, “Analyzing the Effectiveness and Applicability of Co-training,” Proceedings of the ninth international conference on Information and knowledge management, ACM 2000 (“Nigam”). Omid Madani et al., “Co-Validation: Using Model Disagreement on Unlabeled Data to Validate Classification Algorithms,” Advances in neural information processing systems, 2004 (“Madani”). Appeal 2020-001995 Application 14/896,344 4 Rejections A. Claims 1–8, 10–14, and 17–19 are rejected as being unpatentable under 35 U.S.C. § 103 over Moshe, Nigam, Chapman, and Bayraktar. B. Claim 9 is rejected as being unpatentable under 35 U.S.C. § 103 over Moshe, Nigam, Chapman, Bayraktar, and Martin. C. Claims 15 and 20 are rejected as being unpatentable under 35 U.S.C. § 103 over Moshe, Nigam, Chapman, Bayraktar, Madani, and Chan. 3 ANALYSIS We have considered all of Appellant’s arguments and any evidence presented. In our analysis below, we highlight and address specific findings and arguments for emphasis. Rejection A of Independent Claim 1 under § 103 Issues: Under 35 U.S.C. § 103, we focus our analysis on the following argued limitations that we find are dispositive regarding Rejection A of claim 1: Did the Examiner err by finding that the cited references teach or suggest the disputed “generating” limitation: generating a heat map for the region indicating suitability for building an air quality monitoring station by using the spatial classifier and the temporal classifier to generate air quality index levels for areas within the region[,] 3 As previously noted, the Examiner withdrew Rejection C of claim 16. See Ans. 3. The Examiner also withdrew a rejection of all claims under 35 U.S.C. § 101. See Final Act. 2. Appeal 2020-001995 Application 14/896,344 5 within the meaning of representative claim 1?4 (Emphasis added). See Final Act. 3–7. Appellant contends that in Moshe “there is no teaching or suggestion that the ground source particulate map is indicating suitability for building an air quality monitoring station by using the spatial classifier and the temporal classifier to generate air quality index levels for areas within the region.” Appeal Br. 8–9 (emphasis omitted). Appellant contends that Bayraktar also does not teach the disputed limitation. Id. Appellant additionally contends: “[i]n contrast to the Examiner’s combination, claim 1 generates a heat map that shows suitable locations for placement of air quality monitoring stations. Such a feature cannot be found in the prior art of record.” Appeal Br. 9. Appellant urges that Chapman “is silent regarding the aforementioned feature of the instant claims.” Appeal Br. 10. We are not persuaded by Appellant’s argument, because we find Appellant is arguing the references separately. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (One cannot show non obviousness by attacking references individually where the rejections are based on combinations of references.). The Examiner cites to Moshe as the primary reference for teaching “generating a heat map for the region” and “generat[ing] air quality index levels for areas within the region,” as recited in claim 1. See Final Act. 5 (citing Moshe Fig. 7, 15B, element 419(e), ¶ 48). 4 Throughout this opinion, we give the claim limitations the broadest reasonable interpretation (BRI) consistent with the Specification. See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). Appeal 2020-001995 Application 14/896,344 6 We agree with the Examiner’s findings, because we find Moshe’s Figure 7 at least suggests generating a heat map for a region. See Moshe Fig. 7, Ans. 4. The Examiner specifically cites Bayraktar as teaching the disputed limitation “indicating suitability for building an air quality monitoring station.” See Final Act. 7 (citing Bayraktar 301). We agree with the Examiner’s findings because we find Bayraktar’s description of locating air quality measurement sites, and Bayraktar’s use of a smoke contour map that displays air quality data, collectively suggest “generating a heat map for the region indicating suitability for building an air quality monitoring station,” as recited in claim 1. See Final Act. 9 (citing Bayraktar 301, 303, Fig. 2); see also Ans. 4.5 Appellant has not persuasively rebutted the Examiner’s ultimate legal conclusion of obviousness, which relies upon the combination of Moshe, Nigam, Chapman, and Bayraktar as teaching or suggesting the disputed limitations. See Final Act. 3–7, Ans. 3–5. See Merck, 800 F.2d at 1097. In the Reply Brief, Appellant avers that Bayraktar teaches a contour map, not a heat map. Reply Br. 2. We are not persuaded by Appellant’s argument, because the Examiner cites Moshe, not Bayraktar, for teaching a heat map (see Final Act. 5, citing Moshe, Fig. 7). Further, we are also of the view that Bayraktar’s smoke contour map is at least suggestive of a heat map. See Bayraktar, Figs. 2–4. 5 “[T]he 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. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) (emphasis added) (quoting In re Lamberti, 545 F.2d 747, 750 (CCPA 1976)). See also MPEP § 2123. Appeal 2020-001995 Application 14/896,344 7 Appellant urges in the Reply Brief that “while Moshe illustrates a multi-color coded map of distribution of ground source particulate, the reference do[es] not show [a] heat map for the region indicating suitability for building an air quality monitoring station as recited in the claims.” Reply Br. 2. However, it is irrelevant that the prior art and the claimed subject matter may have different purposes. It is sufficient that references suggest doing what Appellant did, although the Appellant’s particular purpose was different from that of the references. In re Heck, 699 F.2d 1331, 1333 (Fed. Cir. 1983) (citing In re Gershon, 372 F.2d 535, 539 (CCPA 1967)). Thus, for a prima facie case of obviousness to be established, the reference(s) need not recognize the same problem solved by the Appellant. See In re Kemps, 97 F.3d 1427, 1430 (Fed. Cir. 1996). The Supreme Court provides more recent controlling authority: “In determining whether the subject matter of a patent claim is obvious, neither the particular motivation nor the avowed purpose of the patentee controls.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 419 (2007) (emphasis added). This controlling legal reasoning is applicable here. Moreover, we are not persuaded by Appellant’s arguments, because we conclude the scope of the disputed claim terms under BRI broadly encompasses the teachings and suggestions of the above cited references. We conclude the scope of claim 1 is broader than the interpretation imputed by Appellant’s arguments, given that the Specification does not contain a limiting definition for the disputed claim term “heat map.” We emphasize that, because “applicants may amend claims to narrow their scope, a broad construction during prosecution creates no unfairness to the applicant or Appeal 2020-001995 Application 14/896,344 8 patentee.” In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007) (citation omitted). Therefore, on this record, and based upon a preponderance of the evidence, we are not persuaded of error regarding the Examiner’s underlying factual findings and ultimate legal conclusion of obviousness regarding Rejection A of representative independent claim 1. Accordingly, we sustain the Examiner’s Rejection A of representative independent claim 1, and also Rejection A of grouped claims 2–8, 10–14, and 17–19, not separately argued, which fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv). Rejection B of Dependent Claim 9 Claim 9 recites: The one or more computer-readable media of claim 1, wherein the spatial classifier is an artificial neural network (ANN) classifier, and wherein the temporal classifier is one of a linear- chain conditional random field (CRF) classifier, a hidden Markov model (HMM) classifier, or a maximum entropy Markov model classifier. (emphasis added). Appellant contends: While Martin may include a list of artificial intelligence and machine learning techniques, there is nothing in Martin that would suggest a configuration where the spatial classifier is an artificial neural network (ANN) classifier . . . and . . . the temporal classifier is one of a linear-chain conditional random field (CRF) classifier, . . . a hidden Markov model (HMM) classifier, or a maximum entropy Markov model classifier . . . as recited. Appeal Br. 11–12. Appeal 2020-001995 Application 14/896,344 9 We are not persuaded by Appellant’s argument, because Appellant is again arguing the references separately. The Examiner cites to Moshe and Nigam for collectively teaching or suggesting the “classifiers” recited in claim 9. See Moshe ¶ 24; Nigam 87; but cf. with Martin (“Inferences can be based at least in part on explicit training of classifiers.” ¶ 108). See Final Act. 25–26. Moreover, the Examiner cites to Martin’s neural network (in the context of determining residential air quality monitoring) for at least suggesting “wherein the spatial classifier is an artificial neural network . . . classifier,” as recited in claim 9. See Final Act. 25 (citing Martin ¶ 108, i.e., “artificial intelligence component 1106 can employ artificial intelligence and/or machine learning techniques . . . [and] server 108 can employ any suitable scheme (e.g., neural networks, expert systems . . . Markov Models”) (emphasis added). As an additional issue of claim construction, we find no limiting definition in the Specification or claims that would preclude the Examiner’s broader reading, nor has Appellant argued a specific definition for a “spatial classifier” or a “temporal classifier.” Claim 9. We emphasize that claim 9 recites the “temporal classifier is one of a linear chain conditional random field, a hidden Markov model classifier, or a maximum entropy Markov model classifier.” (emphasis added). Accordingly, we conclude a teaching in a reference for at least one of these three classifiers is sufficient to show obviousness.6 (emphasis added). 6 When a claim covers several alternatives, the claim may be unpatentable if any of the alternatives within the scope of the claim are taught by the prior Appeal 2020-001995 Application 14/896,344 10 We are not persuaded the Examiner erred, because we find Martin’s neural networks and Markov models teach or suggest the disputed claim 9 limitations: “wherein the spatial classifier is an artificial neural network (ANN) classifier, and wherein the temporal classifier is one of a linear-chain conditional random field (CRF) classifier, a hidden Markov model (HMM) classifier, or a maximum entropy Markov model classifier.” (emphasis added). See Martin ¶ 108. Appellant further argues “[a] person having ordinary skill in the art would have to go well beyond simple experimentation to arrive at the configuration of classifiers as arranged in claim 9” and this would be “a daunting task” because “the outcome of co-training classifiers is not predictable.” Appeal Br. 12. But the Examiner finds an artisan would have: modified the combination of Moshe, Nigam, Chapman and Bayraktar to have used an artificial neural network or a hidden Markov model (or one of its generalizations) to perform the classification. These classifications algorithms are known in the art, as evidenced by their use in Martin. A person skilled in the art in possession of the combination of Moshe and Nigam would have found it necessary to find some classification algorithms to use in the context of the co-training taught by Nigam. That person would have been motivated to use one of the many classification algorithms known and used at the time, which include artificial neural networks and hidden Markov models (and generalizations). The combination amounts to no more than combining prior art elements according to known methods to yield predictable results. art. See Brown v. 3M, 265 F.3d 1349, 1351 (Fed. Cir. 2001); see also Schumer v. Lab. Computer Sys., Inc., 308 F.3d 1304, 1311 (Fed. Cir. 2002) (citing Brown v. 3M, 265 F.3d at 1352). Appeal 2020-001995 Application 14/896,344 11 Final Act. 26. Our reviewing court guides that evidence of “some superior property or advantage that a person of ordinary skill in the relevant art would have found surprising or unexpected” tends to indicate nonobviousness. In re Soni, 54 F.3d 746, 750 (Fed. Cir. 1995). But unexpected results as a secondary consideration “must be shown to be unexpected compared with the closest prior art.” Kao Corp. v. Unilever U.S., Inc., 441 F.3d 963, 970 (Fed. Cir. 2006) (quoting In re Baxter Travenol Labs., 952 F.2d 388, 392 (Fed. Cir. 1991)). Appellant’s argument that the outcome of the classifiers recited in claim 9 is “unpredictable” is understood by the Board as an inference that the claimed invention produces unexpected results. See Appeal Br. 12. In support, Appellant urges that Nigam, as cited by the Examiner, “appears to suggest the unpredictability of co-training.” Id. However, a close review of Nigam shows it is actually unclear whether the co-training would do better than EM. See Nigam, § 4. Without more, we find unavailing Appellant’s mere assertion that “the task of a proper combination of classifiers for a co-training solution as recited in claim 9” would be a “daunting task” because “the outcome of co-training classifiers is not predictable.” Appeal Br. 12. On this record, we find Appellant has not met the burden of persuasion because Appellant has not shown that the results of claim 9 would be unexpected when compared to the closest prior art. See Kao, 441 F.3d at 970. Therefore, on this record, we are not persuaded of error regarding the Examiner’s ultimate legal conclusion of obviousness for Rejection B of dependent claim 9, and we sustain the rejection. Appeal 2020-001995 Application 14/896,344 12 Rejection C of Dependent Claims 15 and 20 Appellant does not advance any separate, substantive arguments for Rejection C of dependent claims 15 and 20. See Appeal Br. 10 (¶ 2). Arguments not timely made are forfeited. See 37 C.F.R. § 41.37(c)(1)(iv). As noted above, the Examiner withdrew Rejection C of dependent claim 16 in the Answer. See Ans. 3. CONCLUSION The Examiner did not err with respect to obviousness Rejections A, B, and C of claims 1–15 and 17–20 over the cited prior art of record, and we sustain the rejections. DECISION SUMMARY Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–8, 10–14, 17–19 103 Moshe, Nigam, Chapman, Bayraktar 1–8, 10–14, 17–19 9 103 Moshe, Nigam, Chapman, Bayraktar, Martin 9 15, 20 103 Moshe, Nigam, Chapman, Bayraktar, Madani, Chan 15, 20 Overall outcome 1–15, 17–20 FINALITY AND RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). See 37 C.F.R. § 41.50(f). AFFIRMED Copy with citationCopy as parenthetical citation