Ex Parte Aitken et al

Patent Trial and Appeal Board

Jul 6, 2015

11560930 (P.T.A.B. Jul. 6, 2015)

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.
11/560,930 11/17/2006 Stuart W. Aitken 4189-00201 6595
30652 7590 07/07/2015
CONLEY ROSE, P.C.
5601 GRANITE PARKWAY, SUITE 500
PLANO, TX 75024
EXAMINER
POUNCIL, DARNELL A
ART UNIT PAPER NUMBER
3621
MAIL DATE DELIVERY MODE
07/07/2015 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 STUART W. AITKEN, WARREN LEE,
KAUSHIK SUBRAMANIAN, and JONATHAN QUINN
____________________

Appeal 2013-0006431
Application 11/560,9302
Technology Center 3600
____________________

Before NINA L. MEDLOCK, PHILIP J. HOFFMANN, and
BRUCE T. WIEDER, Administrative Patent Judges.

MEDLOCK, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1–8 and 10–24. We have jurisdiction under 35 U.S.C.
§ 6(b).
We REVERSE.

1 Our decision references Appellants’ Appeal Brief (“App. Br.,” filed
August 10, 2011) and Reply Brief (“Reply Br.,” filed October 1, 2012), and
the Examiner’s Answer (“Ans.,” mailed August 1, 2012) and Final Office
Action (“Final Act.,” mailed March 31, 2011).
2 Appellants identify Safeway, Inc. as the real party in interest. App. Br. 4.
Appeal 2013-000643
Application 11/560,930

2
CLAIMED INVENTION
Appellants’ claimed invention “relates to the creation of customized
nutritional purchase information, and more specifically to the creation of
nutritional reports based upon purchases at a local store or online store made
while using a loyalty card” (Spec. ¶ 4).
Claim 1, reproduced below, is illustrative of the subject matter on
appeal:
1. A computerized method for managing loyalty card
data, the method comprising:
providing a database coupled to a central terminal;
storing in the database a plurality of records comprising
nutritional information related to products available for
purchase by a consumer using a loyalty profile, wherein the
loyalty profile is associated with the consumer and wherein the
nutritional information comprises at least one nutritional
element of the products available for purchase;
upon recognition of the loyalty profile, associating in the
database the nutritional information with products purchased by
the consumer using the loyalty profile; and
displaying nutritional information associated with the
products purchased by the consumer using the loyalty profile,
wherein the displayed nutritional information comprises a
quantity of the at least one nutritional element aggregated over
the historical time range, wherein the nutritional element and
the historical time range are selectable at least by the consumer.

REJECTIONS
Claims 1–5, 7, 13–15, and 17–20 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Fine (US 2003/0171944 A1, pub. Sept. 11,
2003) and Mansfield (US 5,819,735, iss. Oct. 13, 1998).
Claim 24 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Fine, Mansfield, and Benardot (US 2005/0027174, pub. Feb. 3, 2005).
Appeal 2013-000643
Application 11/560,930

3
Claim 6 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Fine, Mansfield, and Combs (US 2005/0010476 A1, pub. Jan. 13, 2005).
Claims 8 and 10–12 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Fine, Mansfield, and Armes (US 2003/0023549 A1,
pub. Jan. 30, 2003).
Claim 16 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Fine, Mansfield, and Official Notice.
Claims 21–23 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Fine, Mansfield, and Ecer (US 5,412,564, iss. May 2, 1995).

ANALYSIS
Independent claims 1, 7, and 13 and dependent claims 2–5, 14, 15, and 17–
20
We are persuaded by Appellants’ argument that the Examiner erred in
rejecting independent claims 1, 7, and 13 under 35 U.S.C. § 103(a) because
neither Fine or Mansfield, individually or in combination, discloses or
suggests that “the displayed nutritional information comprises a quantity of
the at least one nutritional element aggregated over the historical time range,
wherein the nutritional element and the historical time range are selectable at
least by the consumer,” as recited in independent claim 1, and similarly
recited in independent claims 7 and 13 (App. Br. 10–17).
Appeal 2013-000643
Application 11/560,930

4
The Examiner acknowledges that Fine does not explicitly disclose the
argued limitation, and cites Mansfield to cure the deficiency of Fine (Final
Act. 3–4 (citing Fine, col. 4, ll. 40–48; col. 7, ll. 50–61)). The Examiner
then concludes that:
it would have been obvious to one having ordinary skill in the
art at the time the invention, to have modified [the] method of
Fine [so] as to include wherein the displayed nutritional
information comprises a quantity of the at least one nutritional
element aggregated over a historical time range wherein the
nutritional element and the historical time range are selectable
at least by the consumer, in order to give the consumer
customized experience and allow the customer to determine
which nutritional elements said customer would desire to be
displayed.
Id. at 4.
There is no dispute that Mansfield discloses separately selecting a
nutritional element and a historical time range. However, we agree with
Appellants that Mansfield does not disclose or suggest that a user may select
both the nutritional element that is displayed and the historical time range
over which the nutritional element is aggregated (App. Br. 14–17).
Mansfield discloses an autonomous electronic device comprising a
barcode scanner, a nutrition facts database, a user memory for storing
product records of products eaten, and an integral readout display (Mansfield
Abstract). Daily cumulative totals of calories and various other nutrients,
i.e., fat, saturated fat, cholesterol, sodium, dietary fiber, and carbohydrates,
can be displayed as bar graphs, and weekly calorie totals, broken down by
day, also can be displayed to show how successful the user has been in
adhering to his/her diet goals over a period of time (see id.). Mansfield
describes that the device has a 6-way switch, and operates in six modes,
Appeal 2013-000643
Application 11/560,930

5
including, of particular relevance here, a display mode (id. at col. 7, ll. 50–
61).
In the display mode, a user of the Mansfield device has two display
options — the user may choose to display (1) his/her daily nutrient intake,
i.e., daily intake of calories, fat, saturated fat, cholesterol, sodium, dietary
fiber, and/or carbohydrates; or (2) a weekly calorie summary (id. at col. 7,
ll. 56–58). Mansfield describes that the daily summary is automatically reset
to zero every 24 hours. But “because calories are often the most important
criteria to be followed for the diet,” the daily calorie consumption is saved
“in a running seven-day record which can be displayed by the user” (id. at
col. 10, ll. 13–16).
As Appellants correctly observe, if a consumer using the Mansfield
device “wishes to have a choice as to the nutrient to be displayed, the user
can only select the previous 24-hour period as the historical time range”
(App. Br. 16), i.e., in that circumstance, the nutrient is selectable by the user
but the historical time range is not. Similarly, if the consumer “wishes to
have a choice as to the time range, the only nutrient available is calories”
(id.).
“[I]n no single embodiment (i.e., in no single user-selected mode or
option of use) does a user [of the Mansfield device] possess the capability to
select the nutrient that will be displayed while also possessing the capability
to select the historical time range over which the nutrient will be
aggregated” (Reply Br. 11). As such, Mansfield does not disclose or suggest
that “the displayed nutritional information comprises a quantity of the at
least one nutritional element aggregated over the historical time range,
wherein the nutritional element and the historical time range are selectable at
Appeal 2013-000643
Application 11/560,930

6
least by the consumer,” as recited in independent claim 1, and similarly
recited in independent claims 7 and 13.
In view of the foregoing, we do not sustain the Examiner’s rejection
of independent claims 1, 7, and 13 under 35 U.S.C. § 103(a). We also do
not sustain the Examiner’s rejection under 35 U.S.C. § 103(a) of claims 1–5,
7, 13–15, and 17–20, each of which depends from one of independent
claims 1, 7, and 13.
Dependent claims 6, 8, 10–12, 16, and 21–24
The remaining rejections based on Benardot, Combs, Armes, and
Ecer, in combination with Fine and Mansfield, do not cure the deficiency in
the Examiner’s rejection of independent claims 1, 7, and 13. Therefore, we
do not sustain the rejections under 35 U.S.C. § 103(a) of claims 6, 8, 10–12,
16, and 21–24, each of which depends, directly or indirectly, from one of
independent claims 1, 7, and 13.

DECISION
The Examiner’s rejections of claims 1–8 and 10–24 under 35 U.S.C.
§ 103(a) are reversed.

REVERSED
mls