WARHEAD, INC.

Patent Trials and Appeals Board

Jan 13, 2022

2020006567 (P.T.A.B. Jan. 13, 2022)

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. 13/969,219 08/16/2013 Gilbert Walker 930154.401 9336 500 7590 01/13/2022 SEED INTELLECTUAL PROPERTY LAW GROUP LLP 701 FIFTH AVE SUITE 5400 SEATTLE, WA 98104 EXAMINER PAULA, CESAR B ART UNIT PAPER NUMBER 2177 NOTIFICATION DATE DELIVERY MODE 01/13/2022 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): USPTOeAction@SeedIP.com pairlinkdktg@seedip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte GILBERT WALKER, LEIF ALEXANDER, and MATT FRANKLIN ___________ Appeal 2020-006567 Application 13/969,219 Technology Center 2100 ____________ Before CAROLYN D. THOMAS, JAMES B. ARPIN, and GREGG I. ANDERSON, Administrative Patent Judges. ARPIN, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 1-20, all of the pending claims. Final Act. 2.2 We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42 (2012). Appellant identifies the real party-in-interest as Warhead, Inc. Appeal Br. 2. 2 In this Decision, we refer to Appellant’s Appeal Brief (“Appeal Br.,” filed April 24, 2020) and Reply Brief (“Reply Br.,” filed September 18, 2020); the Final Office Action (“Final Act.,” mailed November 22, 2019) and the Examiner’s Answer (“Ans.,” mailed July 21, 2020); and the Specification (“Spec.,” filed August 16, 2013). Rather than repeat the Examiner’s findings and Appellant’s contentions in their entirety, we refer to these documents. Appeal 2020-006567 Application 13/969,219 2 STATEMENT OF THE CASE The claimed methods, media, and servers relate[] to improving the efficiency of a software professional to create and manage a website and more particularly, but not exclusively, relates to tools and techniques to gather images, text, audio, video, and other computer deliverable content as a database and program code package that is interactively presentable over a network in the form of a commercially desirable website. Spec., 1:4-9. As noted above, claims 1-20 are pending. Claims 1, 15, and 18 are independent. Appeal Br. 29-30 (claim 1), 32-33 (claim 15), 34-35 (claim 18) (Claims App.). Claims 2-14 depend directly or indirectly from claim 1, claims 16 and 17 depend directly from claim 15, and claims 19 and 20 depend directly from claim 18. Id. at 29-35. Claim 15, reproduced below with disputed portions of a limitation emphasized, is representative. 15. At least one non-transitory computer readable storage medium whose stored contents configure a computing system to perform a method, the method comprising: opening a web development tool website with a browser; opening a managed website with the web development tool; serving web pages, including a first web page, of the managed website with a web server embedded in the web development tool; accepting first user input into the web server, the first user input arranged to direct interactive execution of a web page design editor; opening the web page design editor while continuing to serve web pages of the managed website; Appeal 2020-006567 Application 13/969,219 3 associating the first web page of the managed website with the web page design editor; electronically displaying a digital graph paper image with the web page design editor, the digital graph paper image having a fixed plurality of equally spaced columns, each column formed by a determined plurality of pixels, and the digital graph paper image having a plurality of uniform height rows, each uniform height row corresponds to a variable vertical dimension in the associated first web page for corresponding objects in the associated first web page with the variable vertical dimension being defined by heights of the corresponding objects, the digital graph paper image configured to display one or more separately identifiable sectors of one or more grid blocks in one row and one or more adjacent columns of the digital graph paper image, each of the one or more separately identifiable sectors representing an object included in the associated first web page; accepting second user input, the second user input arranged to select a sector of the one or more separately identifiable sectors of the digital graph paper image; based on the selected sector of the digital graph paper image, concurrently highlighting a corresponding object on the first web page served by the web server embedded in the web development tool; accepting third user input, the third user input arranged to modify the selected sector; executing a build process in real time, the build process configured to update the first web page according to the third user input; and executing a deployment process in real time, the deployment process configured to integrate the updated first web page with the managed website. Appeal Br. 32-33 (Claim App.) (emphases added). Each of independent claims 1 and 18 includes recitations corresponding to the disputed portions of the limitation of claim 15. Id. at 29, 34; see id. at 25-27; Reply Br. 5. Appeal 2020-006567 Application 13/969,219 4 REFERENCES AND REJECTIONS The Examiner relies upon the following references: Name3 Reference Published Filed Kiefer US 2013/0145259 A1 June 6, 2013 Dec. 6, 2011 Tvorun US 2013/0227397 A1 Aug. 29, 2013 Feb. 24, 2012 Bank US 2014/0026115 A1 Jan. 23, 2014 Apr. 4, 2008 The Examiner rejects: (1) claims 1-5, 7-15, 18, and 20 under 35 U.S.C. § 103(a)4 as obvious over the combined teachings of Tvorun and Kiefer (Final Act. 3- 26); and (2) claims 6, 16, 17, and 19 under 35 U.S.C. § 103(a) over the combined teachings of Tvorun, Kiefer, and Bank (id. at 26-30). We review the appealed rejections for error based upon the issues identified by Appellant, and in light of the contentions and evidence produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential). The Examiner and Appellant focus their findings and contentions, respectively, on claim 15; so we do as well. See Appeal Br. 25- 27; Ans. 31-37; Reply Br. 5-6. Arguments not made are forfeited.5 Unless 3 All reference citations are to the first named inventor only. 4 The instant application claims the benefit of U.S. Provisional Patent Application No. 61/684,653, filed August 17, 2012, before the effective date of the obviousness provisions of the America Invents Act. 5 See In re Google Tech. Holdings LLC, 980 F.3d 858, 863 (Fed. Cir. 2020) (“Because Google failed to present these claim construction arguments to the Board, Google forfeited both arguments.”); 37 C.F.R. § 41.37(c)(1)(iv) (2012) (“Except as provided for in §§ 41.41, 41.47 and 41.52, any arguments or authorities not included in the appeal brief will be refused consideration by the Board for purposes of the present appeal.”). Appeal 2020-006567 Application 13/969,219 5 otherwise indicated, we adopt the Examiner’s findings in the Final Office Action and the Answer as our own and add any additional findings of fact for emphasis. We address the rejections below. ANALYSIS A. Obviousness over Tvorun and Kiefer As noted above, the Examiner rejects independent claim 15 as obvious over the combined teachings of Tvorun and Kiefer. Final Act. 17- 23. The Examiner finds Tvorun teaches or suggests the majority of the limitations of claim 15. Id. at 17-19, 22 (citing Tvorun ¶¶ 19, 22, 24-28, 64, Fig. 1). The Examiner finds, however: Tvorun does not specifically teach electronically displaying a digital graph paper image with the web page design editor, the digital graph paper image having a fixed plurality of equally spaced columns, each column formed by a determined plurality of pixels, and the digital graph paper image having a plurality of uniform height rows, each uniform height row corresponds to a variable vertical dimension in the associated first web page for corresponding objects in the associated first web page with the variable vertical dimension being defined by heights of the corresponding objects, the digital graph paper image configured to display one or more separately identifiable sectors of one or more grid blocks in one row and one or more adjacent columns of the digital graph paper image, each of the one or more separately identifiable sectors representing an object included in the associated first web page; accepting second user input, the second user input arranged to select a sector of the one or more separately identifiable sectors of the digital graph paper image. Final Act. 19-20 (italics omitted). Nevertheless, the Examiner finds Kiefer teaches or suggests these missing limitations. Id. at 20-21 (citing Kiefer ¶¶ 18-22, 34-41, 59-65, 69, 72-76, 92, Figs. 3, 4). Further, the Examiner Appeal 2020-006567 Application 13/969,219 6 finds a person of ordinary skill in the relevant art would have had reason to combine the teachings of Kiefer with those of Tvorun to modify Tvorun’s web development tool to utilize a studio user interface to design interactive magazine editions where edition content may be displayed on mobile devices in a format that is specified by a particular publisher, regardless of the native operating platform particular to mobile device. Magazine editions may also layout edition content according to the size of a display screen of mobile device as Kiefer suggested in paragraphs [0018]-[0020]. Id. at 22. Appellant contends the Examiner errs in finding Kiefer teaches or suggests the disputed portions of the “electronically displaying” limitation. Appeal Br. 20-21; Reply Br. 2-3; see Ans. 31-37. For the reasons given below, we are not persuaded the Examiner errs. As noted above, claim 15 recites, electronically displaying a digital graph paper image with the web page design editor, the digital graph paper image having a fixed plurality of equally spaced columns, each column formed by a determined plurality of pixels, and the digital graph paper image having a plurality of uniform height rows, each uniform height row corresponds to a variable vertical dimension in the associated first web page for corresponding objects in the associated first web page with the variable vertical dimension being defined by heights of the corresponding objects, the digital graph paper image configured to display one or more separately identifiable sectors of one or more grid blocks in one row and one or more adjacent columns of the digital graph paper image, each of the one or more separately identifiable sectors representing an object included in the associated first web page. Appeal Br. 20-21; Reply Br. 2-3. Consequently, Appellant contends, the digital graph paper image has a plurality of columns and a plurality of rows and is configured to display one or more sectors. Each sector is one or more grid blocks in one row and one or Appeal 2020-006567 Application 13/969,219 7 more adjacent columns, such that each sector represents a corresponding object in the web page. Each row in the digital graph paper image has a uniform height that corresponds to a variable vertical dimension in the web page. (Emphasis added). This variable vertical dimension is defined by the height of the corresponding object in the web page. Therefore, there is direct relationship between a single row height in the digital graph paper and a variable vertical height in the web page, such that the height of the rows and the sectors in the digital graph paper image is fixed and cannot change - rather, the corresponding variable vertical dimension in the web page changes based on the height of corresponding objects in the web page. Reply Br. 3 (italics added); see Appeal Br. 21. Appellant’s Figure 7, depicting a digital graph paper image, is reproduced below, including Appellant’s annotations. Reply Br. 4; see Appeal Br. 22. Figure 7 depicts windows including digital graph paper image 176 and associated web page 106. See Spec., 8:16-17. Digital graph paper image 176 includes sectors 180a-180h, which correspond to objects in sections 106a-106h of web page 106. Appeal Br. 22. Appellant annotates Appeal 2020-006567 Application 13/969,219 8 Figure 7, “such that row two in the digital graph paper image is referenced as R2, while a height of the objects in sections 106c, 106d, and 106e are identified as H1, H2, and H3, respectively.” Id. Appellant contends: As illustrated, row R2 in the digital graph paper image includes three sectors, sector 180c, sector 180d, and sector 180e. As claimed, each of these sectors has a uniform height, which is also uniform with respect to the other rows in the digital graph paper image. Each of these sectors represents an object in the associated web page. The sections 106c, 106d, and 106e in the web page 106 include the objects “Products,” “Descriptions,” and “Inst. to user,” respectively. These object names have been obscured in the annotated version of Figure 7, but are clearly visible in the original figure. The heights of these objects are referenced as H1, H2, and H3, respectively. Therefore, section 106c and object “Products” has a height of H1, section 106d and object “Descriptions” has a height of H2, and section 106e and object “Inst. to user” has a height of H3. Appeal Br. 22 (emphasis added). Thus, Appellant contends, “the vertical dimension in the web page 106 for corresponding objects is variable and is defined by heights of the corresponding objects, as is claimed.” Id. at 23. In view of the depiction in Figure 7, Appellant asserts, a single row can have multiple sectors and each sector corresponds to a different section in a web page, and these sections can have different vertical dimensions defined by their corresponding objects. Conversely, Kiefer adjusts for different sized content by selecting additional rows of grid segments. Nothing in Kiefer describes, suggests, or even hints at the claimed features of a single row in a digital graph paper image corresponding to a variable vertical dimension in a web page, where the digital graph paper image displays one or more separately identifiable sectors in one row that each represent an object included in the web page. Appeal 2020-006567 Application 13/969,219 9 Appeal Br. 25 (emphasis added). Therefore, Appellant contends Kiefer fails to teach or suggest the disputed portions of the limitation of claim 15. Id. We disagree with Appellant for two reasons. First, Appellant’s contentions are not consistent with the language of claim 15. In particular, Appellant asserts that claim 15 recites, “a single row in a digital graph paper image correspond[s] to a variable vertical dimension in a web page, where the digital graph paper image displays one or more separately identifiable sectors in one row that each represent an object included in the web page.” Appeal Br. 25 (emphases added). However, claim 15 recites, “the digital graph paper image [is] configured to display one or more separately identifiable sectors of one or more grid blocks in one row and one or more adjacent columns of the digital graph paper image.” Appeal Br. 33 (Claims App.) (emphases added). Referring to Figure 7, the Specification discloses, “[s]ectors of the digital graph paper are illustrated in FIG. 7 with double or bold lines.” Spec., 21:11-12. Thus, in Figure 7, “a first three columns of grid blocks form sector 180c, a next six columns form sector 180d, an unused column, and a right-most two columns of grid blocks form sector 180e.” Id. at 23:14-16. Consequently, we understand claim 15 recites that each of a plurality of “separately identifiable sectors” is comprised of one or more rows of uniform height and one or more adjacent, equally spaced columns. Further, both the rows and the columns consist of grid blocks. See Spec., 20:27-21:3 (“The digital graph paper image 176 is configured to display one or more separately identifiable groups of one or more grid blocks each. Blocks that are grouped together are considered to be a ‘sector’ 180 of grid blocks, and characteristics of both individual grid blocks 178, and sectors 180 of grid blocks 178 can be customized and maintained.”). Appeal 2020-006567 Application 13/969,219 10 Claim 15 further recites, “each of the one or more separately identifiable sectors represent[s] an object included in the associated first web page.” Appeal Br. 33 (Claims App.) (emphasis added). Therefore, the sectors and corresponding objects also consist of one or more rows and one or more columns of grid blocks. See Spec., 20:27-21:3 Second, we are persuaded Kiefer teaches or suggests the disputed portions of the limitation of claim 15. Final Act. 20-21 (citing Kiefer ¶¶ 18- 22, 34-41, 59-65, 69, 72-76, 92, Fig. 3). Kiefer’s Figure 3 is reproduced below. Figure 3 is a “block diagram of a system for displaying edition content of a magazine edition.” Kiefer ¶ 10. In particular, Figure 3 depicts: System 300 sections a screen 304 of a mobile device 106 into a grid 306, and uses grid segments 307 from the grid 306 to assemble tiles 308. Each tile 308 may be assigned to an article 312, the contents of which (e.g., article content 313) is optimized or otherwise arranged for display on screen 304. Appeal 2020-006567 Application 13/969,219 11 Kiefer ¶ 59; see id. ¶¶ 63 (“Grid segments 307 may be the smallest divisible portions of screen 304, as determined by grid calculator 302. One or more grid segments 307 may be grouped into a tile 308.”), 64 (“Tile selector 310 groups grid segments 307 into one or more tiles 308. As just referenced, tile 308 may be one or more grid segments 307. A tile 308 may be assigned to render article content 313 of a particular article 312.”). Thus, Kiefer teaches or suggests tiles (e.g., sectors) comprise rows and columns consisting of grid segments (e.g., grid blocks), and these tiles may correspond to article content (e.g., objects). See Kiefer ¶¶ 64 (“Tile selector 310 groups grid segments 307 into one or more tiles 308. As just referenced, tile 308 may be one or more grid segments 307. A tile 308 may be assigned to render article content 313 of a particular article 312.”), 65 (“In an embodiment, tile selector 310 determines the different types of article content 313 included in the articles 312, and selects or generates tiles 308 on grid 306 based on the article content 313.”); 85 (“For example, tile selector 310 may determine select tiles 308 from grid 306, each tile 308 including a selection of one or more of the grid segments 307.”). Moreover, Kiefer discloses “[g]rid segments 307 may be of equal or different sizes,” i.e., grid segments may be of uniform height and equally spaced. Id. ¶ 63 (emphasis added). In addition, Kiefer explains that tiles T1-T5 may be adjusted to accommodate articles A1-A5. Kiefer ¶ 73, Fig. 3 (depicting Tile 308 and Content Page 316); see Appeal Br. 33 (Claims App.) (reciting “accepting second user input, the second user input arranged to select a sector of the one or more separately identifiable sectors of the digital graph paper image”). Kiefer discloses that “[e]ach tile 308 may be adjusted by adding or removing the grid segments 307 assigned to each tile 308.” Kiefer ¶ 73; see id. ¶¶ 76 (“As the screen 304 on which content pages 316 varies, so does the sizes of Appeal 2020-006567 Application 13/969,219 12 the tiles 308 based on new grids 306.”), 85 (“At step 430, a layout for the content page is determined, the layout comprising a tile corresponding to each of the one or more articles.”). On this record, we are persuaded the Examiner shows that Kiefer teaches or suggests the disputed portions of the limitation of claim 15, as properly understood. Final Act. 20-21; Ans. 31-37. For the above reasons, we are not persuaded the Examiner errs in rejecting independent claim 15 as obvious over the combined teachings of Tvorun and Kiefer, and, thus, we sustain the Examiner’s rejection of claim 15. Appellant does not challenge the rejection of independent claims 1 and 18 or of claims 2-5, 7-14, and 20, which depend from independent claim 1 or 18, separately from the challenge to claim 15. Appeal Br. 25-27; Reply Br. 5-6. Therefore, we also sustain the rejection of claims 1-5, 7-14, 18, and 20. B. Obviousness over Tvorun, Kiefer, and Bank As noted above, the Examiner also rejects claims 6, 16, 17, and 19 over the combined teachings of Tvorun, Kiefer, and Bank. Final Act. 26-30. Each of these claims is dependent from one of independent claims 1, 15, and 18. Appeal Br. 31, 33-34, 35 (Claims App.). Appellant does not challenge the rejection of these claims separately from the rejection of claims 1, 15, and 18. Appeal Br. 27; Reply Br. 5-6; see Ans. 37. Because we are not persuaded the Examiner errs in rejecting claim 1, 15, or 18 (see supra Section A), on this record, we also are not persuaded the Examiner errs in rejecting dependent claims 6, 16, 17, and 19. Therefore, we sustain the rejection of these dependent claims. Appeal 2020-006567 Application 13/969,219 13 DECISION 1. The Examiner does not err in rejecting: a. claims 1-5, 7-15, 18, and 20 under 35 U.S.C. § 103(a) as obvious over the combined teachings of Tvorun and Kiefer; and b. claims 6, 16, 17, and 19 under 35 U.S.C. § 103(a) over the combined teachings of Tvorun, Kiefer, and Bank. 2. Thus, on this record, claims 1-20 are not patentable. CONCLUSION We affirm the Examiner’s rejections of claims 1-20. In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1-5, 7-15, 18, 20 103(a) Tvorun, Kiefer 1-5, 7-15, 18, 20 6, 16, 17, 19 103(a) Tvorun, Kiefer, Bank 6, 16, 17, 19 Overall Outcome 1-20 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv) (2013). AFFIRMED