Ex Parte 7983951 et al

Patent Trial and Appeal Board

Jun 22, 2017

95002370 (P.T.A.B. Jun. 22, 2017)

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.
95/002,370 09/14/2012 7983951 3566.024USX 2662
43536 7590 06/22/2017
MUSKIN & FARMER LLC
100 West Main Street
SUITE 205
Lansdale, PA 19446
EXAMINER
RIMELL, SAMUEL G
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
06/22/2017 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
____________

EBAY INC.,1
Requester.

v.

KABBAGE, INC.,
Patent Owner,
____________

Appeal 2017-005065
Reexamination Control 95/002,370
Patent 7,983,951 B2
Technology Center 3900
____________

Before STEPHEN C. SIU, JEREMY J. CURCURI, and
IRVIN E. BRANCH, Administrative Patent Judges.

BRANCH, Administrative Patent Judge.

DECISION ON APPEAL

1 eBay, Inc. remains the requester and is referred to herein as such. Pursuant
to a transfer of eBay’s payment business, including PayPal, Inc. to PayPal
Holdings, Inc. on July 17, 2015, PayPal is said also to be a Real Party in
Interest along with eBay.
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Patent 7,983,951 B2

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eBay Inc. (“Requester”) appeals under 35 U.S.C. §§ 134 and 315 the
Examiner’s decision to confirm claim 1–9.2 TPR App. Br. 2–30. We have
jurisdiction under 35 U.S.C. §§ 134 and 315.

STATEMENT OF THE CASE
This proceeding arose from a September 14, 2012 request for an inter
partes reexamination of claims 1–9 of U.S. Patent 7,983,951 B2, titled
“Apparatus to Provide Liquid Funds in the Online Auction and
Marketplace” and issued to Robert J. Frohwein and Kathryn T. Petralla on
July 19, 2011 (“the ’951 patent”).
Claim 1 reads as follows:
1. A system to transfer a loan amount of a loan to a
seller who lists an item for sale on an e-commerce web site, the
system comprising:
a lending server to communicate with an e-commerce
server hosting the e-commerce web site, the e-commerce web
site comprising web pages that allows sellers to list goods for
sale and allows buyers to bid on or purchase the goods for sale;
the lending server being in communication with a lending
database that stores credit profiles of parties comprising
respective credit information; and
the lending server being in communication with a
financial processing application to initiate transfer of funds
using a computer communications network,
wherein the lending server is configured to retrieve a
credit profile associated with the seller from the lending
database and make a determination, based on at least both the
credit profile and on characteristics of the seller’s sales history
on the e-commerce web site, whether to approve the loan to the

2 Third Party Requester Appeal Brief, Inter Partes Reexamination, dated
June 22, 2015 (“TPR App. Br.”).
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seller, and upon approval, notify the seller the loan is available
and terms of the loan, and upon acceptance by the seller, use the
financial processing application to transfer the loan amount to
the seller,
wherein the seller is permitted to use the loan amount to
improve the seller’s cash flow or other purpose.

Requester appeals the Examiner’s non-adoption of the following
rejections:
Claims 1–9 under 35 U.S.C. § 102(b) as anticipated by Yuan (US
2002/0038277 A1, published Mar. 28, 2002);
Claims 1–9 under 35 U.S.C. § 102(e) as anticipated by May
(US 7,899,712 B2, issued Mar. 1, 2011);
Claims 1–9 under 35 U.S.C. § 102(b) as anticipated by Cornelius
(US 6,629,081 B1, issued Sept. 30, 2003);
Claim 9 as unpatentable under 35 U.S.C. § 103(a) over the combined
teachings of Yuan and Weksler (US 2006/0149665 A1, published July 6,
2006);
Claim 9 as unpatentable under 35 U.S.C. § 103(a) over the combined
teachings of May and Weksler.

RELATED PROCEEDINGS
We are aware that the ’951 Patent also is the subject of Inter Partes
Reexamination 95/002,003 (“the ’003 Reexamination”).

ANALYSIS
The Examiner finds Yuan does not describe claim 1’s server making a
determination, based on a credit profile associated with the seller, whether to
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approve a loan to a seller. RAN 6–7.3 Accordingly, the Examiner does not
adopt the proposed rejection of claims 1–9 as anticipated by Yuan. Id. 5–8.
Requester’s arguments (TPR App. Br. 8–11; TPR Reb. Br. 3–54) do
not persuade us of error. Specifically, we are not persuaded that Yuan’s
server (see, e.g., Fig. 1, ref. no. 6) is configured to make the determination
whether to approve a loan to a seller. Even if we were to agree with
Requester that Yuan’s server is configured to collect information that may
be considered a “credit profile” and “characteristics of the seller’s sales
history on the e-commerce web site” (TPR App. Br. 7–10), Requester does
not direct us to where Yuan expressly describes a loan server configured to
make the claimed determination. See generally Yuan ¶¶ 65, 78, 80, 81, 83,
88. Accordingly, we sustain the Examiner’s decision not to adopt the
proposed rejection of claims 1–9 as anticipated by Yuan.
The Examiner finds May does not describe claim 1’s server
configured to notify the seller the loan is available and terms of the loan.
RAN 8–10. Accordingly, the Examiner does not adopt the proposed
rejection of claims 1–9 over May. Id.
Requester’s arguments (TPR App. Br. 16–17; TPR Reb. Br. 8–9) do
not persuade us of error. We are not persuaded, for example, that May’s
server being configured to communicate information to participants,
including sellers (see, e.g., May 4:26–30, 36–39, and 57–67) necessarily
includes notifying the seller upon approval of the loan that the loan is

3 Right of Appeal Notice (“RAN” mailed April 18, 2014).
4 Third Party Requester Rebuttal Brief (“TPR Reb. Br.” filed November 5,
2015).
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available and terms of the loan as required by claim 1. Accordingly, we
sustain the Examiner’s decision not to reject claims 1–9 as anticipated by
May.
The Examiner finds Cornelius does not describe claim 1’s server
making a determination, based on a credit profile associated with the seller,
whether to approve a loan to a seller because Cornelius is concerned with the
credit worthiness of buyers, not sellers. RAN 11–13.
Requester’s arguments (TPR App. Br. 21–24; TPR Reb. Br. 13) do
not persuade us of error. Specifically, Requester does not direct us to a
server in Cornelius that is expressly configured to make the claimed
determination whether to approve a loan to a seller. See generally Cornelius
Figs. 59, 61. Accordingly, we sustain the Examiner’s decision not to adopt
the proposed rejection of claims 1–9 as anticipated by Cornelius.
Because Requester does not provide arguments to overcome the
shortcomings the Examiner finds with respect to Yuan and/or May as to the
anticipation rejection of claim 1 (see generally TPR App. Br. 27–29; TPR
Reb. Br. 15–16), we are unpersuaded of error in the Examiner’s decision not
to adopt the proposed rejections of claim 9 as obvious over the combination
of Weksler and Yuan or Weksler and May (see RAN 13–14).

DECISION5
The Examiner did not err in not adopting the proposed rejections of
claims 1–9.

5 In coming to our Decision here, we have considered our Decision in the
appeal of the Examiner’s determination in the ’003 Reexamination, wherein
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
Requests for extensions of time in this inter partes reexamination
proceeding are governed by 37 C.F.R. § 1.956. See 37 C.F.R. § 41.79.
In the event neither party files a request for rehearing within the time
provided in 37 C.F.R. § 41.79, and this decision becomes final and
appealable under 37 C.F.R. § 41.81, a party seeking judicial review must
timely serve notice on the Director of the United States Patent and
Trademark Office. See 37 C.F.R. §§ 90.1 and 1.983.

AFFIRMED

we entered new grounds of rejection that claims 1–9 of the ’951 Patent are
obvious under 35 U.S.C. § 103 over May (claims 1–8) and Weksler (claim
9). See Decision on Appeal, entered March 31, 2016. We decline to enter
those same new grounds of rejection here, even though the same art is before
us, because the record in the ’003 Reexamination included evidence not
before us now, namely the Shamos Declaration (Expert Declaration of Dr.
Michael Shamos, made May 30, 2012). That evidence, among other things,
was essential to our Decision in the ’003 Reexamination.
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PATENT OWNER:

MUSKIN & FARMER LLC
100 WEST MAIN STREET
SUITE 205
LANSDALE, PA 19446

THIRD PARTY REQUESTER:

DENTONS US LLP
P.O. BOX 061080
CHICAGO, IL 60606-1080