Cerego, LLC

Patent Trials and Appeals Board

Dec 10, 2021

2021002355 (P.T.A.B. Dec. 10, 2021)

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.
15/264,438 09/13/2016 Andrew Smith Lewis 175348.1 6547
175348 7590 12/10/2021
Cerego, LLC
C/O KEATING & BENNETT, LLP
1800 Alexander Bell Drive
SUITE 200
Reston, VA 20191
EXAMINER
EGLOFF, PETER RICHARD
ART UNIT PAPER NUMBER
3715
NOTIFICATION DATE DELIVERY MODE
12/10/2021 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):
JKEATING@KBIPLAW.COM
uspto@kbiplaw.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ANDREW SMITH LEWIS, PAUL MUMMA,
ALEX VOLKOVITSKY, and KIT RICHERT

Appeal 2021-002355
Application 15/264,438
Technology Center 3700
____________

Before CHARLES N. GREENHUT, MICHAEL J. FITZPATRICK, and
BRANDON J. WARNER, Administrative Patent Judges.

FITZPATRICK, Administrative Patent Judge.

DECISION ON APPEAL
Appellant, Cerego, LLC,1 appeals under 35 U.S.C. § 134(a) from the
Examiner’s non-final decision rejecting claims 1–22. We have jurisdiction
under 35 U.S.C. § 6(b).
We affirm.

1 “Appellant” refers to the applicant as defined in 37 C.F.R. § 1.42.
Appellant identifies itself as the sole real party in interest. Appeal Br. 2.
Appeal 2021-002355
Application 15/264,438

2
STATEMENT OF THE CASE
The Specification
The Specification’s disclosure “relate[s] generally to learning systems
and more particularly, for example, learning systems with adaptive engines
and content editor processors.” Spec. 1:12–14.

The Claims
Claims 1–22 are rejected. Non-Final Act. 1. No other claims are
pending. Id. Claim 1 is illustrative and reproduced below.
1. A learning system comprising:
a content editor processor configured or programmed to:
receive content data packets from a plurality of
learner devices; and
identify a plurality of items from digital materials
based on the content data packets; and
an adaptive engine processor configured or programmed
to:
transmit respective interactions to the plurality of
learner devices based on the plurality of items;
receive respective responses from the plurality of
learner devices based on the respective interactions; and
generate an electronic copy of at least a portion of
the digital materials;
wherein the electronic copy includes a plurality of
highlighted items that are highlighted based on the
respective responses.
Appeal Br. 15.
Appeal 2021-002355
Application 15/264,438

3
The Examiner’s Rejections
The following rejections, all under 35 U.S.C. § 103, are before us:
1. claims 1, 2, 4–7, 9, 11–18, and 22 over Agarwal2 and Levy3
(Non-Final Act. 3);
2. claim 3 over Agarwal, Levy, and Heffernan4 (id. at 7);
3. claim 8 over Agarwal, Levy, and Hanks5 (id. at 8);
4. claim 10 over Agarwal, Levy, and Kelson6 (id.);
5. claims 19 and 20 over Agarwal, Levy, and Raguseo7 (id. at 9);
and
6. claim 21 over Agarwal, Levy, and Van Schaack8 (id. at 10).

DISCUSSION
Rejection 1
Appellant argues the rejected claims together. Appeal Br. 4–12. We
choose claim 1 as representative. See 37 C.F.R. § 41.37(c)(1)(iv).
The Examiner found that Agarwal discloses most of the subject matter
of claim 1 except that “Agarwal does not explicitly disclose the plurality of
highlighted items are highlighted based on the respective responses.” Non-
Final Act. 3–4 (citing Agarwal 4:6–37, 9:63–10:4, 11:41–57, 12:4–42). The

2 US 8,832,584 B1, issued Sept. 9, 2014 (“Agarwal”).
3 US 2013/0295535 A1, published Nov. 7, 2013 (“Levy”).
4 US 2010/0279265 A1, published Nov. 4, 2010 (“Heffernan”).
5 US 2016/0133148 A1, published May 12, 2016 (“Hanks”).
6 US 2015/0269856 A1, published Sept. 24, 2015 (“Kelson”).
7 US 2005/0138538 A1, published June 23, 2005 (“Raguseo”).
8 US 6,652,283 B1, issued Nov. 25, 2003 (“Van Schaack”).
Appeal 2021-002355
Application 15/264,438

4
Examiner found, however, that Levy discloses the missing subject matter in
the context of a similar system and concluded:
[I]t would have been obvious to one skilled in the art
before the effective filing date of the invention to modify the
teachings of Agarwal by transmitting requests to the students to
highlight certain portions of the received data packets, and
generating a copy of the digital materials including correctly and
incorrectly highlighted portions, as taught by Levy. Such a
modification would involve applying a known technique (Levy’s
process of providing highlighting feedback) to a known method
(Agarwal’s aggregated highlighting from multiple students), to
obtain predictable results of testing the students’ ability to
correctly identify portions of passages such as topic, detail and
main idea (as suggested by Levy Par. 136).
Id. at 5.
Appellant argues “the Examiner’s allegations regarding how Agarwal
in view of Levy teaches or suggests all of the features and method steps
recited in Appellant’s claims 1 and 13 are unclear and contradictory.”
Appeal Br. 6. Appellant explains that this is due to the Examiner’s rejection
relying on teachings of “interactions” (as recited in claim 1) in both Agarwal
and Levy, stating:
The Examiner first alleges that the questions about highlighted
passages generated by the auto generator 324 of Agarwal
corresponds to the “interactions” recited in Appellant’s claims 1
and 13 (see the Examiner’s allegations on page 4, lines 1–3 of
the Office Action). Then, the Examiner contradicts this previous
allegation by alleging that the “assignment to highlight certain
parts of the passage in certain colors,” disclosed in Levy,
somehow corresponds to the “interactions” recited in Appellant’s
claims 1 and 13 (see the Examiner’s allegations on page 4, line
22 through page 5, line 1 of the Office Action).
Id. Appellant adds: “[T]he alleged ‘interactions’ of Agarwal purportedly
corresponding to questions about already highlighted passages[ are]
Appeal 2021-002355
Application 15/264,438

5
completely different and unrelated to the alleged ‘interactions’ of Levy
purportedly corresponding to the request or assignment to a user to have the
user highlight parts of a not-yet-highlighted passage.” Id. at 6–7.
We are not persuaded by these arguments. The Examiner concedes
that neither reference includes all limitations of claim 1. The rejection is
under § 103 for obviousness, not under § 102 for anticipation. The
Examiner’s reliance on the cited teachings of Agarwal and Levy is clear,
without contradiction, and proper. The Examiner does not find that Agarwal
anticipates claim 1. Rather, the Examiner proposes modifying Agarwal in
view of Levy to include requests to highlight certain portions of the received
data packets as taught by Levy and generating a copy of the digital materials
that would include the highlighted portion added by the learners pursuant to
the requests to do so.
Appellant argues that Levy’s requests/assignments to highlight are
“not based on a plurality of items which were identified based on content
data packets received from a plurality of learner devices, as required by
Appellant’s claim 1.” Appeal Br. 7–8. This argument is not persuasive
because, as the Examiner observes (Ans. 7), it attacks Levy individually,
whereas the rejection is based on a combination of Agarwal and Levy. See
In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (“Non-
obviousness cannot be established by attacking references individually
where the rejection is based upon the teachings of a combination of
references. . . . [A reference] must be read, not in isolation, but for what it
fairly teaches in combination with the prior art as a whole.”).
Appellant argues that the proposed combination “does not make sense
because Agarwal teaches that the received data packets have already been
Appeal 2021-002355
Application 15/264,438

6
highlighted.” Appeal Br. 8. Appellant adds: “[T]here would have been
absolutely no reason or motivation at all to have modified the system of
Agarwal by transmitting a request to the user to somehow highlight certain
portions of the received data packet because the data has already been
highlighted by the user.” Id. The Examiner responds that, in Agarwal, the
highlighting is not displayed to the users/learners; “instead, the user may
request to see the highlighting after answering the question.” Ans. 6 (citing
Agarwal 12:4–42, Figs. 7–8); see also Agarwal 12:20–22 (“When you are
ready, click the ‘See highlight’ button to see the highlight and decide
whether you knew it or not.”). The Examiner is correct in this regard.
Further, and contrary to Appellant’s assertion, the prior art does support a
reason for the modification. As the Examiner found, Levy teaches that
presenting users with questions is “to a degree interchangeabl[e]” with
presenting users with highlighting assignments. Ans. 7 (citing Levy ¶30).
Thus, the Examiner’s conclusion that it would have been “obvious to replace
Agarwal’s questions with Levy’s highlighting assignments, or add Levy’s
highlighting assignments, as Levy shows that both can be used to assess
reading comprehension,” (id. at 8) is supported by the evidence.
Appellant argues that “Levy does not teach or suggest that the results
of a user’s answers to questions are represented using highlighting.” Appeal
Br. 11. But, as the Examiner responds, the rejection is not premised on such
a teaching by Levy. See Ans. 9–10. Rather, the rejection relies on Levy’s
teaching that the results of highlighting by users/learners are displayed by
differentiating what was highlighted correctly and incorrectly using different
colors, thereby satisfying the limitation of a “plurality of highlighted items
Appeal 2021-002355
Application 15/264,438

7
that are highlighted based on the respective responses.” Id. at 10 (citing
Levy ¶138, Fig. 38); see also Non-Final Act. 5.
We have considered Appellant’s arguments but they do not apprise us
of error. Accordingly, we affirm the rejection of claim 1 over Agarwal and
Levy, as well as that of claims 2, 4–7, 9, 11–18, and 22, which fall
therewith. 37 C.F.R. § 41.37(c)(1)(iv).
Rejections 2–6
Appellant’s sole argument against these rejections is that the
additional references in these rejections “fail to cure the deficiencies of
Agarwal and Levy described.” Appeal Br. 13. As Appellant failed to show
such a deficiency, as discussed above, it likewise fails to show error in these
rejections. Accordingly, we affirm Rejections 2–6, collectively of claims 3,
8, 10, and 19–21.
Appeal 2021-002355
Application 15/264,438

8
DECISION SUMMARY
In summary:

Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 2, 4–7,
9, 11–18,
22
103 Agarwal, Levy 1, 2, 4–7, 9,
11–18, 22

3 103 Agarwal, Levy,
Heffernan
3
8 103 Agarwal, Levy,
Hanks
8
10 103 Agarwal, Levy,
Kelson
10
19, 20 103 Agarwal, Levy,
Raguseo
19, 20
21 103 Agarwal, Levy,
Van Schaack
21
Overall
Outcome
1–22

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