Ex Parte 6032859 et alDownload PDFPatent Trial and Appeal BoardNov 30, 201290011146 (P.T.A.B. Nov. 30, 2012) 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. 90/011,004 10/01/2010 6032859 079301US 4868 27910 7590 12/03/2012 STINSON MORRISON HECKER LLP ATTN: PATENT GROUP 1201 WALNUT STREET, SUITE 2900 KANSAS CITY, MO 64106-2150 EXAMINER RIMELL, SAMUEL G ART UNIT PAPER NUMBER 3992 MAIL DATE DELIVERY MODE 12/03/2012 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte CARD ACTIVATION TECHNOLOGIES, INC. ____________ Appeal 2012-012492 MERGED Reexamination Control Nos. 90/011,004 and 90/011,146 Technology Center 3900 ____________ Before, JOSIAH C. COCKS, MICHAEL W. KIM, and BRIAN J. McNAMARA, Administrative Patent Judges. McNAMARA, Administrative Patent Judge. DECISION ON APPEAL SUMMARY Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1-20, 22-31, and 33-38. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. STATEMENT OF THE CASE Appellant’s invention concerns a counter top terminal system which activates debit card transactions. (Abstract) Claims 1 and 20 are illustrative. 1. A method for processing debit purchase transactions, the method comprising the steps of: Appeal 2012-012492 MERGED Reexamination Control Nos. 90/011,004 and 90/011,146 2 providing a counter-top terminal having telecommunications means operable with a computer, at least one keypad for data entry to the computer, a display responsive to the computer, and a card reader communicating with the computer for modifying purchasing value of a card in response to card use; entering transaction data to the computer through keypad data entry; reading a debit styled card through the card reader for providing card data to the computer; entering a customer authorization code for authorizing access to a customer data base of a host data processor; entering a clerk authorization code for initiating a debit purchase transaction; electronically transmitting a transaction request to the host data processor through the telecommunications means of the counter-top terminal for requesting a response of approval or disapproval from the host data processor; receiving a response from the host computer; and displaying the response from the host data processor for the debit purchase transaction on the counter-top terminal display. 20. A method for processing debit purchase transactions, the method comprising the steps of: providing a counter-top terminal having telecommunications means operable with a computer, at least one keypad for data entry to the computer, a display responsive to the computer, and a card reader communicating with the computer for modifying purchasing value of a card in response to card use; entering sales transaction data to the computer through keypad data entry by a clerk; Appeal 2012-012492 MERGED Reexamination Control Nos. 90/011,004 and 90/011,146 3 entering confirmation of the sales transaction data by a customer; reading a debit styled card through the card reader for providing card data to the computer; entering an authorization code through the keypad for having the computer initiate communication with a host data processor; entering a customer authorization code for authorizing access to a customer data base of a host processor; entering a clerk authorization code for initiating a debit purchase transaction; electronically transmitting a transaction request to the host data processor through the telecommunications means of the counter-top terminal for requesting a response of approval or disapproval from the host data processor; receiving a response from the host computer; and displaying the response from the host data processor for the debit purchase transaction on the counter-top terminal display. (Claims Appendix 1 and 6, App. Br.). THE REJECTIONS Claims 1-3, 5-6, 9-14, 16-17, 19-20, 22, 24-25, 28-31, 33, 35-36 and 38 were rejected under 35 U.S.C. 102(b) as anticipated by US 5,577,109 (hereinafter “Stimson”). Claims 7, 8, 18, 26-27 and 37 were rejected under 35 U.S.C. 103(a) as unpatentable over Stimson in view of US 5,278,752 (hereinafter “Narita”). Claims 4, 15, 23 and 34 were rejected under 35 U.S.C. 103(a) as unpatentable over Stimson in view of US 5,732,136 (hereinafter “Murphree”). Appeal 2012-012492 MERGED Reexamination Control Nos. 90/011,004 and 90/011,146 4 THE REJECTION OF CLAIMS 1-3, 5-6, 9-14, 16-17, 19-20, 22, 24-25, 28-31, 33, 35-36 and 38 UNDER 35 U.S.C. §102(b) ISSUE The positions of the Examiner and Appellant are detailed in the Appeal Brief filed on January 30, 2012, the Examiner’s Answer mailed on March 23, 2012 and the Reply Brief filed on May 25, 2012. The primary issues in dispute are whether the claims recite three distinct codes having three distinct functions and whether, as properly construed, Stimson discloses the features recited in the claims. ANALYSIS Because Appellant argues the patentability of claims 1-3, 5-6, 9-14, 16-17, 19-20, 22, 24-25, 28-31, 33, 35-36 and 38 as a group, we analyze these claims together, treating claims 1 and 20 as illustrative. Referring to all the claims in this group, Appellant initially argued that the claim language itself requires the claims to be construed as possessing three distinctive codes having three distinct functions. (App. Br. 6). In its Reply Brief, Appellant appears to concede that claims 1 and 10 recite only two code limitations. (Reply Br. 1-2). The Examiner contends that the “authorization code” in claims 20 and 29 was simply a generic description for the clerk authorization code and the customer authorization code, not a third and distinct code. (Ans. 3).1 With this in mind, the Examiner rejects the above-noted group of claims as anticipated by Stimson. (Final Rej. 3-5). 1 The pages in the Examiner’s Answer are not numbered. For convenience, we refer to the pages of the Examiner’s Answer by their location in the document, counting the title page identified as EXAMINER’S ANSWER as page 1. Appeal 2012-012492 MERGED Reexamination Control Nos. 90/011,004 and 90/011,146 5 Appellant argues that the Examiner’s rejection of this group of claims relies on an improper construction of the claim limitations, namely that the general authorization code is satisfied by the disclosure of a either a clerk authorization code or a customer authorization code (App. Br. 10-11), and that the disclosure in Stimson cited by the Examiner of a clerk authorization code is deficient. (App. Br. 11-13). Because the construction of the appealed claims is central to the issues before us and because at least two of the disputed terms (“customer authorization code” and “clerk authorization code”) are not mentioned in the specification, we begin by reviewing the prosecution history. Prosecution of Application 08/929,993 Appellant’s initial application 08/929,993 (Initial Application) filed on September 15, 1997 claimed priority to provisional applications 60/025,281 filed on September 18, 1996 and 60/033,153 filed December 13, 1996. Appellant’s Initial Application, which led to the March 7, 2000 issuance of US 6,032,859 (hereinafter “Initial ‘859 Patent”), included one claim and no mention of either a “clerk authorization code” or a “customer authorization code” anywhere in the claims or specification. On June 22, 1998, Appellant filed a preliminary amendment adding claims 2-50. (June 22, 1998 Preliminary Amendment.) Appellant’s June 22, 1998 Preliminary Amendment added independent application claim 30, which recited a “method for processing debit purchase transactions” and included, inter alia, the step of “entering an authorization code through the keypad for having the computer initiate communications with a host data processor.” (Id. at 6). Appellant also added application claim 31, which depended from application claim 30 and read as follows: Appeal 2012-012492 MERGED Reexamination Control Nos. 90/011,004 and 90/011,146 6 31. The method according to claim 30 wherein the authorization code entering step comprises the steps of: entering a customer authorization code for authorizing access to a customer data base of a host processor; and entering a clerk authorization code for initiating a debit purchase transaction. (Id. at 9). Appellant took the same approach to newly added independent application claim 40 and dependent application claim 43, which depended from application claim 40. (Id. at 8-9). Notwithstanding that the Initial Application made no mention of a “customer authorization code” and a “clerk authorization code,” Appellant argued that the newly added claims were fully supported by the specification and that no new matter was being introduced. (Id. at 11). The question of whether there exists written description support for the claimed “customer authorization code” and/or the claimed “clerk authorization code” is not before us on re-examination. 37 C.F.R. § 1.552(c). However, we understand the claims were found invalid by the U.S. District Court for the District of Delaware in Case No. 09-cv-0945 as lacking written description support for the “clerk authorization code.” The District Court’s decision is on appeal to the Court of Appeals for the Federal Circuit. (Appeal No. 2011-1528). Appellant appended its Opening Brief in that appeal to its Appeal Brief in this matter as “Related Proceedings.” Since the written description issue is not before us and the “customer authorization code” and “clerk authorization code” are not discussed in the specification, we construe the claims in accordance with other wording Appellant points to in the specification and the prosecution history. Appeal 2012-012492 MERGED Reexamination Control Nos. 90/011,004 and 90/011,146 7 Without commenting on the presence or absence of written description for the terms “customer authorization code” and “clerk authorization code,” in a non- final Official Action mailed on March 8, 1999, the Examiner indicated allowable subject matter in application claims 31, 32, 43 and 44. (“First Official Action” p.6). With respect to application claims 31 and 43, the Examiner noted that the cited references (Gutman, Nair and Levine) did not “teach or fairly suggest the steps of entering a customer authorization access to a customer data base of a host processor and entering a clerk authorization code for initiating a debit purchase transaction.” (Id.). While it is true that the Examiner found Gutman disclosed entering an authorization code through a keypad (Id. at 3), the Official Action does not state whether the Examiner found the further limitation on the authorizing steps to recite codes that were not interchangeable or synonymous with each other, as Appellant asserts. (App. Br. 8). In an amendment mailed on September 8, 1999 and received on September 13, 1999, Appellant cancelled application 31 and amended application claim 30 by deleting the step of “entering an authorization code through the keypad for having the computer initiate communication with a host processor” and inserting the limitations from application claim 31. (Amendment in Response to First Official Action p. 2-3). As noted above, application claim 31 recited steps that comprised the step deleted from application claim 30. Application claim 30 issued as claim 1 of the Initial ‘859 Patent). Appellant made the same amendments to application claim 40, which issued as application claim 10, which is also a subject of this appeal. (Id. at 3-4). In the same amendment, Appellant added claims 51 and 60, which became issued claims 20 and 29. (Id. at 4-7). These claims recited the deleted subject Appeal 2012-012492 MERGED Reexamination Control Nos. 90/011,004 and 90/011,146 8 matter from application claims 30 and 40 (Issued claims 1 and 10) i.e., “entering an authorization code through the keypad for having the computer initiate communication with the host processor” with the additional subject matter the Examiner indicated was allowable from application clams 43 and 44, i.e., entering sales transaction data to the computer through keypad data entry by a clerk and entering confirmation of the sales transaction data by a customer. (Id., see also, First Official Action, p. 6). Issued claims 1 and 20 also included limitations reciting electronically transmitting a transaction request to the host processor through the telecommunication means of the counter-top terminal for requesting a response of approval or disapproval from the host processor, receiving a response from the host processor and displaying the response from the host data processor for the debit purchase transaction on the counter-top terminal display. Issued claims 10 and 29 recited the additional steps of communicating with a host data processor through the telecommunications means of the counter-top terminal for requesting authorization of the debit purchase transaction, requesting authorization of the debit purchase transaction from the host data processor and receiving the authorization. Prosecution of Reexamination 90/009,459 Issued claims 20-22, 25-33 and 36-38 of the Initial ‘859 Patent were the subject of an Ex Parte Reexamination proceeding (90/009,459) which occurred prior to the proceedings which led to this appeal. In Reexamination proceeding Appeal 2012-012492 MERGED Reexamination Control Nos. 90/011,004 and 90/011,146 9 90/009,459, an Official Action mailed on July 2, 2009 indicated that a third party requestor had raised a substantial new question of patentability (July 2, 2009 Official Action p. 3), but, citing 37 C.F.R. § 1.552(c), also noted that issues concerning whether certain claims were not included in the specification as originally filed was beyond the scope of reexamination. (Id. at 4). On October 14, 2009, the Examiner in Reexamination proceeding 90/009,459 rejected claims 20-22, 25-33 and 36-38 as anticipated by Narita, identified in the Request For Reexamination. (Oct. 14, 2009 Official Action p. 2- 3). In response, with respect to claims 20 and 29, Appellant argued that the customer PIN number in Narita is “part of the customer confirmation feature that Narita is directed to” and is not an “authorization code through the keypad for having the computer initiate communication with a host processor.” (Response To Office Action, mailed by Appellant on Dec. 14, 2009, p. 11). With respect to claims 21 and 32, Appellant specifically argued that Narita did not disclose a clerk authorization code or suggest any code that initiates a debit purchase transaction. (Id. at 13). Appellant added, “An entered authorization code, or clerk authorization code, initiates communication with a host data processor, and transaction data is transmitted to the host for approval or disapproval of the transaction.” (Id.). (emphasis added). In a final action mailed on May 27, 2010, the Examiner was not persuaded as to claims 20 and 29, but confirmed the patentability of claims 21 and 32. (May 27, 2010 Official Action p. 9.) In rejecting claims 20 and 29, the Examiner explained: the claims themselves show that a PIN entered by a customer can be part of the authorization code. Dependent claims 21 and 32 each describe the entering of Appeal 2012-012492 MERGED Reexamination Control Nos. 90/011,004 and 90/011,146 10 the authorization code further comprises, in part, “entering a customer authorization code for access to a customer database of a host processor.” (emphasis added). (Id. at 7). In confirming claims 21 and 32, the Examiner explained: Each of the claims requires that the step of entering an authorization code further comprises entering a customer authorization code and “entering a clerk authorization code for initiating a debit purchase transaction. (emphasis added). (Id.) Thus, in Reexamination proceeding 90/009,459 the Examiner reasoned that the step of entering the authorization code in claims 20 and 29 included the two steps recited in claims 21 and 32, i.e., entering the customer authorization code, which did not contribute patentable subject matter, and entering the clerk authorization code, which did contribute patentable subject matter. The Examiner further noted that the term “clerk authorization code” is not defined in the specification and is mentioned only in reference to a phone debit card transaction. (Id.). While we agree with this Examiner that a clerk authorization code is logically a code by the clerk that authorizes the transaction to proceed, as discussed further herein, we do not find that the specification indicates the code must link to a particular merchant. On June 10, 2010, Appellant responded to the May 27, 2010 Final Action. Appellant stated that: Appeal 2012-012492 MERGED Reexamination Control Nos. 90/011,004 and 90/011,146 11 By the proposed amendments to the claims submitted herein, Patent Owner has amended independent claims 20 and 29 to include the limitations of dependent claims 21 and 32, respectively, and has cancelled dependent claims 21 and 32. Because the ‘clerk authorization code’ is not taught or suggested by the Narita reference, Patent Owner believes the proposed amendments render the remaining claims under consideration in this reexamination proceeding, and notes that all of the independent claims in the patent will not include the “clerk authorization code” limitation. (emphasis added). (June 10, 2010 Response to Final Action, p.4) Although Appellant had drafted and prosecuted claims 21 and 32 as steps further limiting the step of entering a customer authorization code, the amendment of May 27, 2010 simply added the steps from claims 21 and 32 to claims 20 and 29 without explicitly stating in the claim that these limitations further limited the step of entering the customer authorization code. (Id.). Amended claims 20 and 29 were then determined to be patentable. The Current Appeal (Merged Reexamination 90/011,004, and 90/011,046) In the present Merged Reexamination Appellant now argues that the three code limitations in claims 20 and 29, amended in previous Reexamination proceeding 90/009,459, are distinct with each code having a distinct function. (App. Br. 6, Reply Br. 2). Appellant argues that “entering a customer authorization code for authorizing access to a customer data base of a host data processor” is disclosed in the ‘859 patent specification at column 3, lines 33-34; that “entering a clerk authorization code for initiating a debit purchase transaction” is disclosed in the specification at column 4, lines 12-13; and that “entering an Appeal 2012-012492 MERGED Reexamination Control Nos. 90/011,004 and 90/011,146 12 authorization code through the keypad for having the computer initiate communication with a host data processor” is disclosed in the specification at column 4, lines 12-14. (App. Br. 4-5) (emphasis omitted). Two of the three lines in the ‘859 patent disclosure Appellant cites as disclosing the step of “entering an authorization code through a keypad to initiate communication with a host processor” overlap with the lines Appellant cites as disclosing “entering a clerk authorization code for initiating a debit purchase transaction.” (App. Br.4-5). Column 4, lines 12-13 of the ‘859 patent specification disclose that a phone debit card is read and the collected amount is entered and confirmed by the clerk with an authorization number. (Col. 4, ll. 12- 13). According to Appellant, this initiates the debit transaction. (App. Br. 4). As distinguished from the step of entering a clerk authorization code, Appellant cites column 4, line 14 of the ‘859 patent specification, which states the main unit transmits its “‘...terminal ID number.…’” as supporting entering an authorization code through a keyboard for having the computer initiate communications with the host data processor. (App. Br. 5). Appellant does not explain how a terminal’s transmission of an existing terminal ID number constitutes a separate step involving “entering an authorization code through the keypad.” Nor does Appellant explain how the clerk’s entering of a clerk authorization code, which would require a man-machine interface, such as a keypad, and which results in a terminal ID not under the control of the clerk being transmitted automatically, constitutes entry of a distinct general authorization code through a keypad. The portions of the specification cited by Appellant demonstrate only that entering the clerk authorization code to initiate the transaction also initiates communication with the host processor by causing the terminal unit to transmit ID information to Appeal 2012-012492 MERGED Reexamination Control Nos. 90/011,004 and 90/011,146 13 the host. The cited portion specification is silent about whether any terminal ID information or any other separate authorization code is “entered” anywhere. In its Opening Brief in its appeal to the Court of Appeals to the Federal Circuit (Opening Brief p. 8) and in the Appeal Brief (App. Br. 8-9), Appellant argues that in Reexamination 90/009,459 claims 20 and 29 were amended to include the use of all three separate transaction codes to complete the claimed purchase transaction. Appellant takes this position notwithstanding that in confirming claims 21 and 32 the Examiner in Reexamination 90/009,045 indicated (i) that “the claims themselves show that a PIN entered by a customer can be part of the authorization code” and (ii) that “[e]ach of the claims requires that the step of entering an authorization code further comprises entering a customer authorization code and entering a clerk authorization code for initiating a debit purchase transaction.” (May 27, 2010, Official Action p. 9, emphasis added). In amending claims 20 and 29 to incorporate these limitations, Appellant also affirmatively represented that it had “amended independent claims 20 and 29 to include the limitations of dependent claims 21 and 32.” (June 10, 2010, Response to Final Action, p.4). Appellant also argued in its Appeal Brief and in its Opening Brief in its Federal Circuit appeal that “if the reexamination unit had believed that the general ‘authorization code’ was synonymous with the ‘clerk authorization code,’ it would have rejected the proposed amendments as violating the basic tenet of patent law that two elements in the same claim cannot perform the same function.” (App. Br. 9, Opening Brief, 45-46). Appellant cites no authority for this “basic tenet” which does not appear to consider circumstances in which multiple steps are performed to carry out a single function. As discussed above, in this case Appellant introduced Appeal 2012-012492 MERGED Reexamination Control Nos. 90/011,004 and 90/011,146 14 the step of “entering the clerk authorization code” into the claims as one of two steps (the other being entering the customer authorization code) limiting the broader step of entering an authorization code. (Application 08/929,993, June 22, 1998, Preliminary Amendment). We look to the specification to provide context. In the overlapping lines of the specification Appellant cites as disclosing these steps, the clerk enters a code and the terminal responds by transmitting its terminal ID. The lines in the specification cited by Appellant state “[a]fter the Phone Debit Card is read and the collected amount is entered and confirmed by the clerk with an authorization number 118, the main unit transmits a card number, its terminal ID number and the amount to the appropriate phone card switch or provider.” (Col. 4, ll. 12-14). These lines of the specification cited by Appellant do not indicate that the terminal ID is entered anywhere. Step 118 appears only in Figure 2, which does not show any codes other than a PIN and a confirmation requested from the customer and an “authorization code” requested from the clerk. As discussed above, the portions of the specification cited by Appellant demonstrate only that entering the clerk authorization code to initiate the transaction also initiates communication with the host processor by causing the terminal unit to transmit ID information to the host. Perhaps most relevant to the claim construction is Appellant’s own admission. Appellant argued in Reexamination 90/009,459 that “[a]n entered authorization code, or clerk authorization code, initiates communication with a host data processor, and transaction data is transmitted to the host for approval or disapproval of the transaction.” (Response To Office Action, mailed by Appellant on Dec. 14, 2009, p. 11, emphasis added). Here, in order to obtain allowance by incorporating the step of entering a clerk authorization code to initiate a debit Appeal 2012-012492 MERGED Reexamination Control Nos. 90/011,004 and 90/011,146 15 purchase, Appellant affirmatively argued that entering the clerk authorization code performs the function of initiating communications with a host data processor, i.e., exactly the same function performed by the claimed step of entering an authorization code through a keyboard. Thus, Appellant itself confirmed that there is no distinction in the function performed by entering the authorization code through a keyboard and entering a clerk authorization code. At best, entering a clerk authorization code is a step performed in carrying out entering an authorization code through the keyboard, rather than a separate and distinct function. We are mindful of Appellant’s contention in this Appeal that claims 20 and 29 recite three distinct code limitations. (Reply Br. 2). However, taken in context of the specification and the prosecution history, which includes Appellant’s explicit admission that the “clerk authorization code” performs the same function as the more general “authorization code” (Id.), we cannot accept Appellant’s argument that the “authorization code” in independent claims 20 and 29 “must be something different” from the combination of codes in original dependent claims 21 and 32, simply because it appears as a separate element in claims 20 and 29. (Reply Br. 5-6). The Examiner rejects claim 1 as anticipated by Stimson, finding, inter alia, that the subject matter forming the basis for patentability in Reexamination 90/009,045, i.e., entering the customer authorization code and entering the clerk authorization code, is disclosed in Stimson. (Final Rej. 4-5). In rejecting claim 20, the Examiner finds that Stimson’s disclosure of entering a customer authorization code and entering a clerk authorization code also anticipates the step of entering an Appeal 2012-012492 MERGED Reexamination Control Nos. 90/011,004 and 90/011,146 16 authorization code. (Final Rej. 12). We agree with this aspect of the Examiner’s construction of claim 20 and turn to the substance of the rejection. (Ans. 6). With respect to “entering a customer authorization code . . . for authorizing access to a customer database” the Examiner cites column 7, lines 9-10 and lines 13-14 of Stimson, which disclose that the user may enter a personal code number (PIN number) and that the host computer checks the database. (Final Rej. 4-5, 12). With respect to “entering a clerk authorization code for initiating a debit purchase transaction,” the Examiner cites column 7, lines 2-3 of Stimson, which disclose that the seller or user is prompted to enter the security code. (Final Rej. 5, 12). Alternatively, the Examiner cites Figure 3 of Stimson for disclosing that the seller presses different buttons to sell a new card, recharge a card or void a transaction. (Id.). Appellant argues that Stimson does not teach the key limitation of a clerk authorization code for initiating a debit purchase transaction. (App. Br. 12-13). Appellant contends that Stimson fails to disclose the features of a clerk authorization code because the code in Stimson is not to some degree proprietary to the clerk, as allegedly suggested by the term itself and the specification. (Id.). Appellant emphasizes that the term “clerk authorization code” “refers to a parcel of information or data which has the characteristics of a ‘code’ and which further has the characteristic that it is proprietary to some degree related to authority, in particular with respect to the clerk (i.e., ‘authorization’).” (Id. at 12). Appellant also argues that there is an element of security secrecy and proprietary information which is inseparable from the term “authorization. (Id.). The Examiner points out that neither the specification nor the claims make mention of any proprietary aspect of the claimed clerk authorization code. (Ans. 11) Appeal 2012-012492 MERGED Reexamination Control Nos. 90/011,004 and 90/011,146 17 As previously noted Appellant cites to column 4, lines 12-13 of the ‘859 patent as disclosing the claimed “clerk authorization code.” (App. Br. 4). The cited portion of the specification makes no mention of a “code” but instead states that “the collected amount is entered and confirmed by the clerk with an authorization number.” (Col. 4, ll. 12-13). Nothing in the cited portion of the specification discusses the source of the authorization number or its parameters. Nothing in this disclosure of an authorization number indicates that the authorization number is in any way proprietary to the clerk. The specification simply states that after the after the collected amount is entered and confirmed by the clerk with an authorization number, the main unit transmits the card number, the terminal ID, etc. (Col.4, ll. 12-14). Thus, “authorization” in the context of the specification simply means entering a number that permits the transaction to proceed. Appellant does not appear to dispute that Stimson’s disclosure of a customer entered PIN constitutes entering a customer authorization number as recited in the present claims. At col. 7, lines 2-5 Stimson also discloses that the seller or user is prompted to enter a security code from the back of the card, using a magnetic card reader, manual entry or other method. Since Stimson discloses that the number can be entered by the seller, we agree with the Examiner that this action constitutes entry of a clerk authorization code. Because Appellant’s specification is silent as to the source of the authorization number, we would reach the same conclusion even if we agreed with Appellant’s argument that there is a level of security associated with the claimed entering of a clerk authorization code. Thus, we agree with the Examiner that Stimson discloses the claimed clerk authorization code and anticipates claims 1 and 20, as properly construed. Appeal 2012-012492 MERGED Reexamination Control Nos. 90/011,004 and 90/011,146 18 Stimson also discloses that entry of the security code enables access to the main processor via a dedicated purchasing network or other well-known type of communications method (col. 7, ll. 5-8) and that the system keeps track of the security number and the identification of the authorizing terminal (See, col. 2, l. 67- col. 3, l. 5; col. 6, ll. 45-65). Thus, Stimson discloses that entering the clerk authorization code functions to initiate the transaction and, because a terminal ID would be transmitted to the host processor, initiates communication with the host. Thus, even under Appellant’s proposed construction of claim 20, as Appellant argues is supported by the specification and which we decline to adopt, we would still hold claim 20 anticipated by Stimson. We thus affirm the rejection of claims 1-3, 5-6, 9-14, 16-17, 19-20, 22, 24- 25, 28-31, 33, 35-36 and 38 as anticipated by Stimson. THE REJECTIONS UNDER 35 U.S.C. § 103 Appellant argues that dependent claims 7, 8, 26, 27, and 37 are not obvious over the combination of Stimson and Narita because independent claims 1, 10, 20 and 29 are patentable. We have affirmed the rejections of claims 1, 10, 20 and 29. In the absence of further argument distinguishing these claims 7, 8, 26, 27 and 37, we affirm the rejection of these claims as well. Appellant argues that dependent claims 4, 15, 23 and 24 are not obvious over the combination of Stimson and Murphree because independent claims 1, 10, 20 and 29 are patentable. We have affirmed the rejections of claims 1, 10, 20 and 29. In the absence of further argument distinguishing these claims 4, 15, 23 and 24, we affirm the rejection of these claims as well Appeal 2012-012492 MERGED Reexamination Control Nos. 90/011,004 and 90/011,146 19 ORDER The rejection of claims 1-3, 5-6, 9-14, 16-17, 19-20, 22, 24-25, 28-31, 33, 35-36 and 38 under 35 U.S.C. 102(b) as anticipated by Stimson is affirmed. The rejection of claims 7, 8, 18, 26-27 and 37 under 35 U.S.C. 103(a) as unpatentable over Stimson in view Narita is affirmed. The rejection of claims 4, 15, 23 and 34 under 35 U.S.C. 103(a) as unpatentable over Stimson in view of Murphree is affirmed. 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). AFFIRMED Rvb PATENT OWNER STINSON MORRISON HECKER LLP ATTN: PATENT GROUP 1201 WALNUT STREET, SUITE 2900 KANSAS CITY, MO 64106-2150 THIRD PARTY REQUESTERS TOWNSEND AND TOWNSEND AND CREW, LLP TWO EMBARCADERO CENTER EIGHTH FLOOR SAN FRANCISCO, CA 94111-3834 PATRICK J. LEE KAYE SCHOLER LLP Appeal 2012-012492 MERGED Reexamination Control Nos. 90/011,004 and 90/011,146 20 901 15TH STREET, NW WASHINGTON, 20005 Copy with citationCopy as parenthetical citation