Ex Parte Beringer et al

Patent Trial and Appeal BoardOct 17, 2012

10285280 (P.T.A.B. Oct. 17, 2012)

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. 10/285,280 10/31/2002 Joerg Beringer 09282.0001-00 1575 22852 7590 10/18/2012 FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER LLP 901 NEW YORK AVENUE, NW WASHINGTON, DC 20001-4413 EXAMINER PATS, JUSTIN ART UNIT PAPER NUMBER 3623 MAIL DATE DELIVERY MODE 10/18/2012 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 JOERG BERINGER, MICHAEL HATSCHER, and DENNIS B. MOORE ____________________ Appeal 2011-004865 Application 10/285,280 Technology Center 3600 ____________________ Before: JOSEPH A. FISCHETTI, MICHAEL W. KIM, and NINA L. MEDLOCK, Administrative Patent Judges. KIM, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-004865 Application 10/285,280 2 STATEMENT OF CASE Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1, 3-15, 17-24, 26, 28, and 30-341. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. The claims are directed to multi-dimensional voting . Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A method comprising: associating a first range of values with a first proposition and a second range of values with a second proposition, wherein the first and second propositions are questions presented to a voter; presenting a voting space having a plurality of locations, each location corresponding to a unique coordinate of first and second proposition values; enabling the voter to vote for the first and second propositions simultaneously by selecting a location in the voting space, wherein the vote is one of a plurality of votes by different voters in individual voting spaces, the votes expressing an aggregate voter opinion on the first and second propositions; recording the first and second proposition values corresponding to the selected location to a computer memory; repeating the selecting and recording; displaying a distribution of the recorded proposition values in the voting space, the displayed distribution comprising a first voting density at a first location in the displayed distribution and a second voting density at a second location in the displayed distribution, wherein: 1 Our decision will make reference to the Appellants’ Appeal Brief (“App. Br.,” filed September 27, 2010) and Reply Brief (“Reply Br.,” filed December 15, 2010), and the Examiner’s Answer (“Ans.,” mailed October 26, 2010). Appeal 2011-004865 Application 10/285,280 3 the first voting density is visually distinguishable from the second voting density, the first voting density reflects a number of times voters selected the first location in the displayed distribution to vote, and the second voting density reflects a number of times voters selected the second location in the displayed distribution to vote; and visually refreshing the displayed distribution of the first voting density and the second voting density during voting of the first and second propositions, wherein a processor is configured to execute the visual refreshing on a display at least continuously while votes are recorded. Claims 1, 4-6, 8-15, 18-20, 22-24, 26, 28, and 30-34 are rejected under 35 U.S.C. § 103(a) as unpatentable over Joshua Paul Abrams, Mathematical Modeling: Teaching the Open-ended Application of Mathematics, 1-27 (2001) (www.meaningfulmath.org) (hereinafter “Abrams”), Katherine Ulrich, Flash 5 for Windows and Macintosh: Visual QuickStart Guide, 1-11 (Oct. 19, 2000) (http://proquest.safaribooksonline.com/0201716143) (last visited May 25, 2008) (hereinafter “Ulrich”), Normal Schofield et al., Multiparty electoral competition in the Netherlands and Germany: A model based on multinomial probit*, 257-93 (1998) (hereinafter “Schofield”), and Moshal (US 2002/0032637 A1, pub. Mar. 14, 2002). Claims 3, 7, 17, and 21 are rejected under 35 U.S.C. § 103(a) as unpatentable over Abrams, Ulrich, Schofield, Moshal, and Appellants’ Admitted Prior Art (AAPA). Appeal 2011-004865 Application 10/285,280 4 FINDINGS OF FACT Specification FF1. The Specification does not include a lexicographic definition of “individual voting spaces.” FF2. Propositions are determined upon which voter preferences are sought. The propositions may include, for example, a trait, a quality, a feature, a question or any characteristic where a voter’s opinion may be desired. The propositions include commercial usages, such as for marketing, and non-commercial uses, such as for company methodology or voter sentiment (5:17-21). ANALYSIS We are not persuaded the Examiner erred in asserting that a combination of Abrams, Ulrich, Schofield, and Moshal renders obvious independent claim 12 (App. Br. 18-24; Reply Br. 1-2). Appellants assert that “Abrams’s two dimensional grid itself represents a range of generic political positions… and not ‘individual voting spaces,’ as recited in claim 1” (App. Br. 19; emphasis original; Reply Br. 1-2). Initially, we note that the Specification does not provide a definition of “individual voting space” (FF1). However, the Specification does give examples of propositions (FF2) which are broad enough to encompass generic political positions, which Appellants above admit is disclosed in Abrams. Additionally, Appellants further admit that the face in Figure 2 of Abrams represents an individual 2 We choose independent claim 1 as representative of all claims. See 37 C.F.R. § 41.37(c)(1)(vii). Appeal 2011-004865 Application 10/285,280 5 voter’s positions, and that the star in Figure 2 of Abrams represents a political party. We agree with the Examiner that it would at least have been obvious to substitute an individual voter for the political party in Abrams (Ans. 17). Accordingly, Abrams does disclose an “individual voting space.” Appellants further assert that “Abrams’s two-dimensional grid is not a space to vote for anything” and that neither Abrams nor Schofield renders obvious “‘enabling a voter to vote’” (App. Br. 19-20; Reply Br. 2). However, page 25 of Abrams discloses changing the location of parties in the two-dimensional grid, which is a form of voting. Moreover, Ulrich allows a voter to vote on a two-dimensional grid. Appellants additionally assert that Ulrich’s color picker does not constitute the claimed ‘first and second propositions’ at least because it does not teach or suggest ‘questions presented to a voter,’ as recited in claim 1 (emphasis added). There are no ‘questions’ in the color picker, (Ulrich, Figure 3.86) and any interpretation of ‘questions’ to mean selecting a color, would not be reasonable in view of the specification (App. Br. 21; Reply Br. 2). However, the Specification makes quite clear that almost any proposition/question for which a voter’s opinion may be desired is contemplated (FF2). Accordingly, the question of “what color” in Ulrich is sufficient to meet the aforementioned aspect of independent claim 1. Appellants also assert that “Ulrich’s color picker, if substituted into Abrams’s axes, would function to move a political party in a grid, which is completely unrelated to color selection, which is the function of Ulrich’s color picker standing alone” (App. Br. 22; Reply Br. 2). However, we agree with the Examiner that Appeal 2011-004865 Application 10/285,280 6 Windows Color Picker, as evidenced by Ulrich, has been properly relied upon because the Windows Color Picker prompt windows are reasonably pertinent to the particular problem with which the applicant was concerned, namely ability to deploy questions regarding multiple propositions for simultaneous selection. As such, it is considered combinable with Abrams (Ans. 19). Appellants assert that “Schofield’s displayed voter positions do not constitute the claimed ‘first voting density’ and ‘second voting density’ because Schofield’s displayed voter positions do not ‘reflect[] a number of times voters selected the first [or second] location in the displayed distribution to vote,’ as recited in claim 1 (emphasis added)” (App. Br. 23; Reply Br. 2). However, the color gradation in Figures 1, 2, 4-5, and 8 of Schofield shows that darker colors reflect a greater number of voter selections of those particular positions on a two-dimensional social/economic grid. Regarding the specifics of transferring voter selections to the display of Schofield, we agree with and adopt the Examiner’s findings and rationales, as set forth on pages 19-20 of the Examiner’s Answer. DECISION The Examiner’s rejections of claims 1, 3-15, 17-24, 26, 28, and 30-34 are 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). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Appeal 2011-004865 Application 10/285,280 7 hh