Ex Parte Johnsmeyer et al

Patent Trial and Appeal BoardOct 15, 2015

12351575 (P.T.A.B. Oct. 15, 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. 12/351,575 01/09/2009 Colin Ward Johnsmeyer 39957 9062 23589 7590 10/15/2015 Hovey Williams LLP 10801 Mastin Blvd., Suite 1000 Overland Park, KS 66210 EXAMINER DANZIG, REVA R ART UNIT PAPER NUMBER 3687 MAIL DATE DELIVERY MODE 10/15/2015 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 COLIN WARD JOHNSMEYER, PATRICK ANTHONY LIEKHUS, THOMAS GREGORY BRANTMAN, and STEPHANIE NICOLE BRANTMAN ___________ Appeal 2013–000511 Application 12/351,575 Technology Center 3600 ___________ Before ANTON W. FETTING, NINA L. MEDLOCK, and TARA L. HUTCHINGS, Administrative Patent Judges. FETTING, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE1 Colin Ward Johnsmeyer, Patrick Anthony Liekhus, Thomas Gregory Brantman, and Stephanie Nicole Brantman (Appellants) seek review under 35 U.S.C. § 134 of a non–final rejection of claims 1–20 and 22, the only claims pending in the application on appeal. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b). 1 Our decision will make reference to the Appellants’ Appeal Brief (“App. Br.,” filed July 10, 2012) and Reply Brief (“Reply Br.,” filed September 20, Appeal 2013-000511 Application 12/351,575 2 The Appellants invented a way of providing shopping assistance to consumers. Spec., para. 1. An understanding of the invention can be derived from a reading of exemplary claim 1, which is reproduced below [bracketed matter and some paragraphing added]. 1. A computer-implemented method of providing shopping assistance to consumers, the method comprising: [1] receiving at a host computer location information representative of locations of a plurality of items in a store; [2] providing at least some of the location information to a mobile communications device operated by a consumer to enable the consumer to locate at least some of the items in the store; [3] receiving from the mobile communications device corrected location information for at least one item in the store, wherein the consumer enters the corrected location information by indicating a location of the item on a representation of a portion of the store; and [4] updating the location information in the host computer to account for the corrected location information. 2012), and the Examiner’s Answer (“Ans.,” mailed August 6, 2012), and Non-Final Rejection (“Non-Final Act.,” mailed January 11, 2012). Appeal 2013-000511 Application 12/351,575 3 The Examiner relies upon the following prior art: Van Zandt US 2006/0010046 A1 Jan. 12, 2006 Melaku US 7,308,356 B2 Dec. 11, 2007 Singer-Harter US 2008/0017708 A1 Jan. 24, 2008 Faus US 7,827,241 B2 Nov. 2, 2010 Claims 1, 2, and 4–12 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Melaku and Faus. Claim 3 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Melaku, Faus, and Singer-Harter. Claims 13–18 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Faus and Singer-Harter. Claims 19 and 22 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Faus and Van Zandt. Claim 20 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Faus, Van Zandt, and Singer-Harter. ISSUES The issues of obviousness turn primarily on whether Faus shows it was predictable to allow a consumer to make corrections to a published product database. Appeal 2013-000511 Application 12/351,575 4 FACTS PERTINENT TO THE ISSUES The following enumerated Findings of Fact (FF) are believed to be supported by a preponderance of the evidence. Facts Related to the Prior Art Melaku 01. Melaku is directed to a wireless personalized self-service system that matches multiple users with multiple interests and, more particularly, the present invention provides components to match user interests, requests, and transactions against a database/archive to optimize user efficiency. Melaku, 1:7–12. 02. Melaku describes a customer creating a list of items on a PCS type device that the customer wishes to obtain. Once the list is created, the PCS device is provided geographical instructions or a route for traveling to the various purveyors. When at a purveyor, the PCS device is loaded with a best route through the store to obtain the items on the PCS or the PCS can transfer the list to a smart store device such as a smart shopping cart which displays the best route. As the smart shopping cart is loaded with the needed objects, they are removed from the list. If the customer deviates from the route, such as by interrupting their shopping with a visit to a coffee shop, the smart cart or PCS is provided with the best route through the store to complete the shopping from a current location of the customer. Melaku, 3:21–29. 03. Melaku’s list contains the item number/exhibit name, price, location (e.g., aisle number, exhibit number, floor number), Appeal 2013-000511 Application 12/351,575 5 current inventory level, traffic level, or any other relevant information. Melaku, 6:55–58. Faus 04. Faus is directed to distributing information intended for publishing on a network. Faus, 1:6–7. 05. Faus provides an open, wiki-style database for their information. That is, all information exists freely on an open platform that can be edited and updated freely. This feature ensures that the information is maintained current. Faus, 1:65– 2:2. 06. Faus describes branch locations as being among the types of data within its scope. Faus, 2:23–29. Singer-Harter 07. Singer-Harter is directed to a wireless computer system used to physically locate a product, and more particularly to displaying a real-time mapping image used to fly-around an establishment to provide directions to a desired product. Singer-Harter, para. 3. 08. Singer-Harter’s GUI shows the same scenery image as a shopper sees with his naked eye. Singer-Harter’s Figure 6a shows an exemplary view as seen by the shopper when walking down “Aisle 1b” of Figure 5. When the shopper reaches “Center Aisle,” the view changes, giving the shopper a view of “Center Aisle” Thus, rather than having to match a map with a location, the shopper simply matches what he sees with his naked eye with Appeal 2013-000511 Application 12/351,575 6 what is shown on the GUI. The shopper is thus able to “fly- around” the store until he reaches the location of the desired product. As shown in Figure 6b, when the shopper reaches “Aisle 3a,” a new GUI is presented, which highlights an area that corresponds with a stocking area shown as a shelf area on which the products are located. Thus, the shopper is led to the exact area where the desired product is located by simply following the scenery map image shown in the wireless device, and the process ends. Singer-Harter, para. 30. Van Zandt 09. Van Zandt is directed to locating retail consumer products. Van Zandt, para. 2. 10. Van Zandt receives an input from a consumer (user) indicating a particular product of class of products. In response, the system provides information indicating the location of the product in relation to the consumer or to a known location or entity. Van Zandt, para. 13. ANALYSIS Claims 1, 2, and 4–12 rejected under 35 U.S.C. § 103(a) as unpatentable over Melaku and Faus Claim 3 rejected under 35 U.S.C. § 103(a) as unpatentable over Melaku, Faus, and Singer-Harter We are not persuaded by the Appellants’ argument that “the language cited in Faus does not relate to product information or even store Appeal 2013-000511 Application 12/351,575 7 information generally, much less information relating to the location of a product within a store or correcting such information.” App. Br. 14–15. The Examiner found that Melaku describes the first two steps of claim 1. This is not under contention, as these steps are what are now conventional tracking of a consumer in relation to known store product location data. Steps 3 and 4 recite having a customer correct location information as errors are discovered. If a customer does so, then it is inherent that to do so, corrected location information for an item be received from the customer’s device, the customer have entered that information, and the location information database be updated, by definition of data correction. Thus, the sole issue is whether it was predictable for a customer to do so. To show that this was predictable, the Examiner found that Faus generically described anyone with a wireless device interrogating a database correcting that database in view of an error. Ans. 3–4. We agree. Faus is directed generically to information intended to be published on a network. FF 04. Melaku’s location information is an example of this and so within the scope of Faus. Product location information is data that any consumer, much less one of ordinary skill, would know from personal experience can change over time, and therefore be inaccurate. More to the point, when a consumer is physically confronted with a product that is nominally not present according to a computer screen, it takes little imagination to consider this presents erroneous data in need of correction, particularly if the product is visible at a different location, like an adjacent bin. So the issue again is, when a consumer is confronted with this situation, would the consumer consider correcting the information. Faus generically suggests anyone in front of a computer screen seeing erroneous information Appeal 2013-000511 Application 12/351,575 8 being given the opportunity to correct that information. Therefore, we conclude it was predictable for a customer to correct erroneous location information in Melaku’s system because of the suggestion from Faus. Appellants argue that Faus does not describe the specific context of Melaku. But that is not the issue. Faus describes a generic problem and solution. The issue is whether one of ordinary skill would have seen that Melaku could fall prey to such a problem. The answer again is that because Melaku describes a database within the scope of the genus described by Faus, this is sufficient to show one of ordinary skill would have so envisioned the problem of erroneous data potential. For the same reason, it cannot be said that the references are non-analogous. Claims 13–18 rejected under 35 U.S.C. § 103(a) as unpatentable over Faus and Singer-Harter The Appellants rely primarily on their arguments in support of claim 1 to attack Faus. The Examiner found that Faus describes claim 13 for generic location information. This is not under contention, as Faus explicitly describes branch location information as being an example of the data within its scope. FF 06. The Examiner found that Singer-Harter describes accessing a product location database in particular. Thus, the Examiner found that as with claim 1, the sole issue was whether one of ordinary skill would have thought to apply Faus’s consumer correction of location data to the product location data of Singer-Harter. We find the same reasoning for applying Appeal 2013-000511 Application 12/351,575 9 Faus to product location data in claim 1 is equally applicable here for the same reasons. Claims 19 and 22 rejected under 35 U.S.C. § 103(a) as unpatentable over Faus and Van Zandt Claim 20 rejected under 35 U.S.C. § 103(a) as unpatentable over Faus, Van Zandt, and Singer-Harter The Appellants rely primarily on their arguments in support of claim 1 to attack Faus. As with claim 13, the Examiner found that Faus describes claim 19 for generic location information. This is not under contention, as Faus explicitly describes branch location information as being an example of the data within its scope. FF 06. The Examiner found that Van Zandt describes accessing a product location database for plural stores in particular. Thus, the Examiner found that as with claim 1, the sole issue was whether one of ordinary skill would have thought to apply Faus’s consumer correction of location data to the product location data for plural stores of Van Zandt. We find the same reasoning for applying Faus to product location data in claim 1 is equally applicable here for the same reasons. Appellants also contend that the references fail to describe plural stores, but as the Examiner found, Faus at least suggests this as a data attribute by its referral to plural branch locations. In any event, data relating to plural locations would be immediately envisioned by one of ordinary skill with reference to any store with plural branches. Appeal 2013-000511 Application 12/351,575 10 CONCLUSIONS OF LAW The rejection of claims 1, 2, and 4–12 under 35 U.S.C. § 103(a) as unpatentable over Melaku and Faus is proper. The rejection of claim 3 under 35 U.S.C. § 103(a) as unpatentable over Melaku, Faus, and Singer-Harter is proper. The rejection of claims 13–18 under 35 U.S.C. § 103(a) as unpatentable over Faus and Singer-Harter is proper. The rejection of claims 19 and 22 under 35 U.S.C. § 103(a) as unpatentable over Faus and Van Zandt is proper. The rejection of claim 20 under 35 U.S.C. § 103(a) as unpatentable over Faus, Van Zandt, and Singer-Harter is proper. DECISION The rejections of claims 1–20 and 22 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) (2011). AFFIRMED em