Ex Parte Deibler

Patent Trial and Appeal BoardMar 23, 2017

11300063 (P.T.A.B. Mar. 23, 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. DEIBLER-2 3808 EXAMINER EBERSMAN, BRUCE I ART UNIT PAPER NUMBER 3692 MAIL DATE DELIVERY MODE 11/300,063 12/14/2005 47931 7590 David E Herron II PO Box 23444 Overland Park, KS 66283 Alina Deibler 03/24/2017 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 Ex parte ALINA DEIBLER Appeal 2015-003550 Application 11/300,063 Technology Center 3600 Before BIBHU R. MOHANTY, JAMES A. WORTH, and MATTHEW S. MEYERS, Administrative Patent Judges. MOHANTY, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE The Appellant seeks our review under 35 U.S.C. § 134 of the Examiner’s Final rejection of claims 49-58, 60, 67—71, and 73—80 which are all the claims pending in the application. We have jurisdiction under 35 U.S.C. § 6(b). SUMMARY OF THE DECISION We AFFIRM. Appeal 2015-003550 Application 11/300,063 THE INVENTION The Appellant’s claimed invention is directed to a method of reporting tips for employees of a cash based business (Spec., page 2, lines 12, 13). Claim 49, reproduced below, is representative of the subject matter on appeal. 49. A method for monitoring cash income and employee tips associated with a cash based business by a tax collecting entity, the method comprising the steps of: providing at least one computer to the cash based business; providing at least one computer to the tax collecting entity; registering the cash based business with the tax collecting entity; assigning an identification number to be associated with the cash based business; compiling data from each computer of the at least one computer used by the cash based business to record cash income received by the cash based business; projecting, by the cash based business, an estimated amount of the cash income and associated with the cash based business; transmitting the cash income received by the business to the at least one computer of the tax collecting entity; receiving, by the tax collecting entity, data relating to the cash income recorded by the at least one computer used by the cash based business; and transmitting the estimated amount of the cash income to the at least one computer of the tax collecting entity; receiving, by the tax collecting entity, data relating to the estimated amount of the cash income associated with the cash based business; determining a difference between the cash income from the estimated amount of cash income. 2 Appeal 2015-003550 Application 11/300,063 THE REJECTIONS The following rejections are before us for review: 1. Claims 49-58, 60, 67—71, and 73—80 are rejected under 35 U.S.C. § 101 as being directed to non-statutory subject matter. 2. Claims 49, 50, 67, and 74 are rejected under 35 U.S.C. § 112(a) or 35 U.S.C. § 112 (pre-AIA), first paragraph, as failing to show possession of the invention. 3. Claims 49-58, 60, 67—71, and 73—80 are rejected under 35 U.S.C. § 112(b) or 35 U.S.C. § 112 (pre-AIA), second paragraph, as being indefinite. 4. Claims 49-58, 67—71, and 73—80 are rejected under 35 U.S.C. § 103(a) as unpatentable over KCash (Alan Liddle, IRS endorses 401 (k)-like tip-reporting incentive; turnover cut sharply in test, Vol., 34, Iss. 22, pages 1—2, Nation’s Restaurant News, NY (2000), hereinafter “KCash”) and TRAC (Tip Reporting Alternative Commitment, revised September 16, 2004, hereinafter “TRAC”). FINDINGS OF FACT We have determined that the findings of fact in the Analysis section below are supported at least by a preponderance of the evidence.1 1 See Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for proceedings before the Patent Office). 3 Appeal 2015-003550 Application 11/300,063 ANALYSIS Rejection under 35 U.S.C. § 101 The Examiner applied a new grounds of rejection in the Answer under 35 U.S.C. § 101 as being directed to non-statutory subject matter (Ans. 19- 22). The Appellant has not filed any arguments in response to this rejection. Accordingly, this rejection of record is summarily affirmed as no arguments have been presented. Rejection under 35 U.S.C. §112 (firstparagraph) The Examiner has rejected claims 49, 50, 67, and 74 under 35 U.S.C. §112, first paragraph, as failing to show possession of the claimed invention (Final Rej. 7—9; see also Ans. 6—9). The Appellant has not filed any arguments for these specific claims in response to this rejection. The Appeal Brief filed at pages 11—24 provides arguments for what appears to be for claims 46—65 from the related case, and claim 46 for instance in this case has been cancelled. Accordingly, this rejection of record is sustained as no arguments for the specific rejected claims have been submitted. Rejection under 35 U.S.C. §112 (secondparagraph) The Examiner has rejected claims 49—58, 60, 67—71, and 73—80 under 35 U.S.C. § 112, second paragraph (Final Rej. 2—5 see also Ans. 2-4). The Appellant has not filed any arguments for these specific claims in response to this rejection. The Appeal Brief filed at pages 24-42 provides arguments for what appears to be for claims 46—65 from the related case, and claim 46, for instance, in this case has been cancelled. Accordingly, this rejection of 4 Appeal 2015-003550 Application 11/300,063 record is sustained as no arguments for the specific rejected claims have been submitted. Rejection under 35 U.S.C. § 103(a) The Examiner has rejected claims 49—60, 67—71, and 73—80 under 35 U.S.C. § 103(a) (Final Rej. 9-18, Ans. 10-18). The Appellant has not filed any arguments for these specific claims in response to this rejection. The Appeal Brief filed provides arguments for what appears to be for claims 46— 65 from the related case, and claim 46 in this case, for instance, has been cancelled. Accordingly, this rejection of record is sustained as no arguments for the specific rejected claims have been submitted. CONCLUSIONS OF LAW We conclude that Appellant has not shown that the Examiner erred in rejecting the claims as listed in the Rejections section above. DECISION The Examiner’s rejection of claims 49—58, 60, 67—71, and 73—80 is sustained. 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)(l)(iv) (2011). AFFIRMED 5