Auction.com, LLCDownload PDFPatent Trials and Appeals BoardMay 25, 20212020005642 (P.T.A.B. May. 25, 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. 15/593,048 05/11/2017 Robert Friedman AUCT.P001C1 5961 30554 7590 05/25/2021 MAHAMEDI IP LAW LLP 910 Campisi Way, Suite 1E Campbell, CA 95008 EXAMINER LUDWIG, PETER L ART UNIT PAPER NUMBER 3687 NOTIFICATION DATE DELIVERY MODE 05/25/2021 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): uspto@m-iplaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ROBERT FRIEDMAN and FARAMARZ FARHOODI Appeal 2020-005642 Application 15/593,048 Technology Center 3600 Before CATHERINE SHIANG, BETH Z. SHAW, and JULIET MITCHELL DIRBA, Administrative Patent Judges. SHAW, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–4 and 7–22. We have jurisdiction 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). Appellant identifies the real party in interest as Auction.com. Appeal Br. 3. Appeal 2020-005642 Application 15/593,048 2 CLAIMED SUBJECT MATTER The claims are directed to an online marketplace system. Spec. ¶ 2. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A computing system for managing multiple online marketplace services, comprising: one or more processors; and one or more memory resources storing instructions that, when executed by the one or more processors, cause the computing system to implement multiple instances of a set of logical components to concurrently and independently host the multiple online marketplace services, each of the multiple online marketplace services being hosted by the computing system at a respective, distinct domain, a first instance of the set of logical components hosting a first online marketplace service of the multiple online marketplace services by performing operations that include: receiving information from a seller that identifies an asset for sale on the first online marketplace service; transmitting data to user devices to enable the user devices to display information regarding the asset; implementing the first online marketplace service for the asset; and wherein an amount of processing resources from the one or more processors for providing one or more of the multiple instances of logical components is dynamically adjusted based on a demand level of one or more of the multiple online marketplace services. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Balassanian US 2013/0254181 Al Sept. 26, 2013 Ravichandran US 2011/0179147 Al July 21, 2011 Appeal 2020-005642 Application 15/593,048 3 REJECTION Claims 1–4 and 7–22 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Balassanian and Ravichandran. Final Act. 2. OPINION On this record, Appellant has not shown any reversible error in the Examiner’s conclusion that claim 1 is obvious over the combination of Balassanian and Ravichandran. We refer to, rely on, and adopt the Examiner’s findings and conclusions set forth in the Final Rejection and Answer. First, Appellant argues the Examiner erred “in providing a proper rationale that one of ordinary skill would have combined Balassanian with Ravichandran.” Appeal Br. 9. An explicit teaching, suggestion, or motivation in the references is not necessary to support a conclusion of obviousness. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 415–16 (2007); In re Ethicon, Appeal 2015-1696 (Fed. Cir. Jan. 3, 2017) (Order). The Supreme Court has instructed that “a court must ask whether the improvement is more than the predictable use of prior art elements according to their established functions” (KSR, 550 U.S. at 417), and apply “an expansive and flexible approach” to obviousness (id. at 415). The Examiner relies on Balassanian to teach most of the claim limitations, and relies to Ravichandran to teach the hosting of online marketplaces limitation(s). See Ans. 5, 6. The Examiner refers to Ravichandran to illustrate that a person of ordinary skill in the online marketplace (e-commerce) art would have been motivated to modify Balassanian’s computer system that aggregates products from online stores, Appeal 2020-005642 Application 15/593,048 4 which comprises crawling one or more websites associated with one or more online stores, collecting information pertaining to products of the stores, extracting key data about each product, and classifying the products into one or more categories based on the key data, with the further ability to host multiple online marketplace services—instead of simply crawling and collecting data from the multiple sites. Ans. 5. Ravichandran explains that web hosting systems “provide space on a server they own or lease for use by their clients as well as providing internet connectivity, typically in a datacenter.” See Ravichandran ¶ 5. One of ordinary skill in the art would have been motivated to combine Balassanian and Ravichandran to have Ravichandran’s ability to host multiple online marketplace sites instead of crawling and collecting data. Therefore, it would have been obvious to the ordinarily-skilled artisan at the time of the invention to combine Balassanian’s teachings of collecting data, such as product data (see Balassanian ¶¶ 32–34, 49, 67, 72, 74, 11, 13, 14) with Ravichandran’s ability to host multiple online marketplace sites (see Ravichandran ¶¶ 5, 7, Abstract, Fig. 3) because Ravichandran is also directed to marketplace services online. Ans. 5; Ravichandran ¶ 7, Abstract, Fig. 3. Because both references are directed to marketplace services online, the ordinarily-skilled artisan would have reasonably used Ravichandran’s ability to host multiple online marketplace sites, even if Balassanian does not explicitly teach hosting multiple online marketplace sites. See Ravichandran ¶ 7, Abstract, Fig. 3. Moreover, such a combination is an obvious predictable variation of known elements. “The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable Appeal 2020-005642 Application 15/593,048 5 results.” KSR, 550 U.S. at 416. “If a person of ordinary skill can implement a predictable variation, § 103 likely bars its patentability.” Id. at 417. The ordinarily-skilled artisan, being “a person of ordinary creativity, not an automaton,” would be able to fit the teachings of Balassanian and Ravichandran together like pieces of a puzzle to predictably result in the claimed invention. Id. at 420–21. Because Appellant has not demonstrated that the proposed combination would have been “uniquely challenging or difficult for one of ordinary skill in the art,” the proposed modification would have been well within the purview of the ordinarily skilled artisan. Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418). Further, we are not persuaded by Appellant’s argument that the Examiner does not provide a “reasonable explanation of how Balassanian and Ravichandran would have worked together.” Appeal Br. 10, 11. As the Examiner explains, and we agree, Ravichandran teaches, among other things, how it is possible for a computer system to host multiple online marketplace services. Ans. 8 (citing Ravichandran, Fig. 3). Although Appellant argues the Examiner uses a “hindsight-based approach,” (Reply Br. 5), “any judgment on obviousness is . . . necessarily a reconstruction based on hindsight reasoning, but so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made and does not include knowledge gleaned only from applicant's disclosure, such a reconstruction is proper.” In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971). See also Radix Corp. v. Samuels, 13 USPQ2d 1689, 1693 (D.D.C. 1989) (“[A]ny obviousness inquiry necessarily involves some hindsight.”). Appeal 2020-005642 Application 15/593,048 6 Here, the Examiner’s reasons for combining teachings from Balassanian and Ravichandran are based on the teachings of Balassanian and Ravichandran. These reasons do not include knowledge gleaned only from the Appellant’s disclosure. Accordingly, we are not persuaded that one having ordinary skill in the art would not have been motivated to Balassanian and Ravichandran. Additionally, Appellant argues that the Examiner fails to establish that Balassanian is analogous art. Appeal Br. 9–10. The Examiner explains that: [T]he examiner has referred to Ballasanian for most of the limitations, and then referred to Ravichandran for the hosting of online marketplaces limitation(s). For example, Ballasanian is “reasonably pertinent to the problem faced by the inventor” in the sense that the problem of figuring out how to collect data from websites on particular products and transmitting for display is addressed by Ballasanian. Further, Ravichandran is “reasonably pertinent to the problem faced by the inventor,” as Ravichandran relates to hosting multiple online marketplace services, each of the services being hosted by the computing system at distinct domains, and one of the problems addressed by the claimed subject matter is such hosting of online services. Ans. 7. Balassanian is directed to collecting information pertaining to products associated with online stores. See Balassanian, Abstract. In the Reply Brief, Appellant argues that collecting data from websites on particular products and transmitting for display, as taught by Balassanian, is not relevant to the claimed invention. Reply Br. 4, 5. We disagree. Appellant has not demonstrated that Balassanian is not reasonably pertinent to the claimed invention. We are not persuaded by Appellant’s argument because we agree with the Examiner that Balassanian, which teaches receiving and Appeal 2020-005642 Application 15/593,048 7 transmitting data on particular products, logically would have commended itself to the inventors’ attention in considering their problem—providing an online marketplace system (Spec ¶ 2, cited in Reply Br. 4)). See In re Clay, 966 F.2d 656, 659 (Fed. Cir. 1992) (“A reference is reasonably pertinent if, even though it may be in a different field from that of the inventor's endeavor, it is one which, because of the matter with which it deals, logically would have commended itself to an inventor’s attention in considering his problem.”). Thus, we find that, contrary to Appellant’s contention, Balassanian is in an analogous art. Appellant also argues that Balassanian and Ravichandran fail to teach or suggest “implementing the first online marketplace service for the asset.” Appeal Br. 8; Reply Br. 6. In particular, Appellant argues that “merely displaying one or more webpages relating to an item” as discussed in paragraph 49 of Balassanian does not teach the claimed “implementing the first online marketplace service for the asset.” Appeal Br. 12. Appellant provides insufficient evidence that the Specification or claims limit “implementing the first online marketplace service” in a way that, under a broad but reasonable interpretation, does not encompass Balassanian’s teachings of a web application that is configured to display one or more web pages relating to one or more products based on user action. Balassanian ¶ 49. “A user action directing the web app to display one or more web pages can be a response to the user’s performance of at least one of the following actions: local search, third party search . . . or web page browsing.” Id. Moreover, the Examiner pointed to more than simply paragraph 49 of Balassanian for teaching this limitation, findings which Appellant does not dispute. See Final Act. 3 (citing Balassanian ¶¶ 49, 67, Appeal 2020-005642 Application 15/593,048 8 72, 74, 11, 13, 14); Ans. 8 (citing Balassanian ¶¶ 49, 67, 72, 74, 11, 13, 14). In the absence of sufficient evidence or line of technical reasoning to the contrary, we find no reversible error. Accordingly, we sustain the rejection of claim 1. For the same reasons, we sustain the rejection of claims 2–4 and 7–22, which are not argued separately with particularity. CONCLUSION The Examiner’s rejection is affirmed. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–4, 7–22 103 Balassanian, Ravichandran 1–4, 7–22 TIME PERIOD FOR 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). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation