Ex Parte Krzyzanowski et alDownload PDFPatent Trial and Appeal BoardJan 18, 201712639165 (P.T.A.B. Jan. 18, 2017) Copy Citation 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. 12/639,165 12/16/2009 Paul Krzyzanowski 09-1060 6383 105590 7590 OpenPeak Inc. 1750 Clint Moore Road Boca Raton, EL 33487 EXAMINER CHANG, KAI J ART UNIT PAPER NUMBER 2468 NOTIFICATION DATE DELIVERY MODE 01/20/2017 ELECTRONIC 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. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): larry.brown@openpeak.com rachael.miller@openpeak.com duda. chahine @ openpeak. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte PAUL KRZYZANOWSKI, GLENN HARTER, MICHAEL KELLY, DAVID KILLIAN, and BRIAN WOODS Appeal 2015-006363 Application 12/639,1651 Technology Center 2400 Before MARC S. HOFF, CARL L. SILVERMAN, and SCOTT E. BAIN, Administrative Patent Judges. BAIN, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s Final Rejection of claims 1—6, 8—14, and 16—30, which constitute all claims pending in the application. We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part. 1 Appellants identify OpenPeak Inc. as the real party in interest. App. Br. 3. Appeal 2015-006363 Application 12/639,165 STATEMENT OF THE CASE The claimed invention relates to an intelligent application store (“app” store) implemented on one or more computers. Abstract; Spec. 14. Claims 1, 24—26, 29, and 30 are independent. Claims 1 and 26 are illustrative of the invention and the subject matter of the appeal, and read as follows (with the disputed limitations in italics): 1. A computer-implemented services system, comprising: one or more processors; an application store, at least partially implemented by at least one of the one or more processors, communicatively connected via a network to a plurality of devices that provide both telephony and digital media services to one or more end users, the application store operable to provide applications via the network for installation and execution on each of the plurality of devices; and an application intelligence subsystem, at least partially implemented by at least one of the one or more processors, communicatively connected via the network to the plurality of devices, the application intelligence subsystem operable to obtain and report information about applications that are provided via the network by the application store and are installed and executed on each of the plurality of devices; wherein the application store comprises: a repository of applications; and a first interface operable to permit an end user to download an application from the repository of applications for installation and execution on one of the plurality of devices; wherein the first interface is operable to present for installation only a subset of the applications in the repository of applications to the end user, wherein the subset is selected for presentation based at least on the identity of the end user. 2 Appeal 2015-006363 Application 12/639,165 26. A computer-implemented application store, comprising: one or more processors; a repository of applications; a first interface, at least partially implemented by at least one of the one or more processors, associated with a first vendor that is operable to provide access to a first subset of applications in the repository of applications for downloading to and installation and execution upon a first plurality of networked devices that provide both telephony and digital media services to one or more end users, wherein the first plurality of networked devices is associated with the first vendor, and a second interface, at least partially implemented by at least one of the one or more processors, associated with a second vendor that is operable to provide access to a second subset of applications in the repository of applications for downloading to and installation and execution upon a second plurality of networked devices that provide both telephony and digital media services to one or more end users, wherein the second plurality of networked devices is associated with the second vendor. App. Br. 52, 59-60 (Claims App’x). THE REJECTIONS ON APPEAL Claims 1—3, 5, 8, 16, 17, 20, and 23—30 stand rejected under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Lemay et al. (US 2009/0307105 Al; Dec. 10, 2009) (“Lemay”). Final Act. 3—22. Claim 4 stands rejected under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Lemay and Elsey et al. (US 2003/0026405 Al; Feb. 6, 2003) (“Elsey”). Final Act. 22-23. 3 Appeal 2015-006363 Application 12/639,165 Claim 6 stands rejected under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Lemay and Kobayashi et al. (US 7,620,036 B2; Nov. 17, 2009) (“Kobayashi”). Final Act. 23-24. Claims 9 and 13 stand rejected under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Lemay and McCarthy et al. (US 2009/0228509 Al; Sept. 10, 2009) (“McCarthy”). Final Act. 2A-26. Claims 10 and 18 stand rejected under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Lemay and Minear et al. (US 2005/0192878 Al; Sept. 1, 2005) (“Minear”). Final Act. 26—27. Claims 11 and 12 stand rejected under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Lemay and Hirasaki (US 2009/0193034 Al; July 30, 2009). Final Act. 27-29. Claim 14 stands rejected under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Lemay and Jahnke et al. (US 2003/0115552 Al; June 19, 2003) (“Jahnke”). Final Act. 29-30. Claim 19 stands rejected under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Lemay, McCarthy, Minear and Hirasaki. Final Act. 30- 31. Claims 21 and 22 stand rejected under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Lemay and Bunch et al. (US 2005/0120113 Al; June 2, 2005) (“Bunch”). Final Act. 31-33. ANALYSIS We have reviewed the Examiner’s rejections in light of Appellants’ arguments presented in this appeal. Arguments which Appellants could have made but did not make in the Briefs are deemed to be waived. See 4 Appeal 2015-006363 Application 12/639,165 37 C.F.R. § 41,37(c)(l)(iv). On the record before us, we are persuaded the Examiner erred in rejecting claims 1—6, 8—14, 16—25, and 29. As to the remaining claims on appeal (claims 26—28 and 30), we are not persuaded the Examiner erred, and we adopt as our own the findings and reasons set forth in the rejections from which the appeal is taken and in the Examiner’s Answer. We provide the following for highlighting and emphasis. Claims 1—6, 8—14, 16—25, and 29 Appellants argue the Examiner erred in finding Lemay teaches an application store in which the “first interface is operable to present for installation only a subset of the applications in the repository of applications [in the store] to the end user, wherein the subset is selected for presentation based at least on the identity of the end user,” as recited in independent claim 1. App. Br. 19—21 (emphasis added). Appellants repeat the same argument for independent claims 24, 25, and 29, all of which include the foregoing disputed limitation (or one identical in material respects) and are subject to the same rejection. App. Br. 24—27, 32—33. We select claim 1 as representative of the group. See 37 C.F.R. § 41.37(c)(l)(iv). The Examiner finds Lemay teaches the disputed limitation via figures and accompanying descriptions of a user purchasing applications from a list displayed on a mobile device. Ans. 2—3 (citing Lemay Figs. 2-4, || 55, 73— 76, 150-153). Appellants contend, however, that in Lemay, every application displayed (or “presented”) to the user is based on user input to the device, such as a keyword search or selection of a displayed application, and not based on “the identity of the end user” as recited in claim 1. App. Br. 20-21 (emphasis added). On the record before us, we are persuaded by Appellants’ argument. 5 Appeal 2015-006363 Application 12/639,165 Figure 2 of Lemay, relied upon by the Examiner, is reproduced below. 200 FIG. 2 Figure 2 illustrates the user interface of a mobile device “after invoking an application store” as set forth in Lemay. Lemay 111. It includes several “application objects” 210, 214, and 240, as well as “application information” for each application object, such as “application information 228.” Id. at 1 55, 56. The “application information 228” may include “an image representing the application, the application name [shown as ‘Application 1’ for application object 210], a developer’s name, and rating information.” Id. at | 56. Each application object also includes a corresponding “purchasing 6 Appeal 2015-006363 Application 12/639,165 information” button, shown as button 230 for application object 210. Id. at 158. The purchasing information may indicate “free,” “buy,” or if the application is already installed on the user device, may indicate “installed” or “uninstall.” Id. The Examiner finds, first, that the display of application objects in Figure 2 is itself a “subset of applications” and thus teaches the disputed claim limitation. Ans. 3. We disagree. As Appellants argue, this “subset” displayed in Figure 2 is not based on “the identity of the user,” but rather is the result of user input. Femay 1150; App. Br. 20. Specifically, Femay teaches “the user can search for or identify an application in the presented application management interface using different criteria or listings.” Femay 1150. We find no indication in the portions of Femay cited by the Examiner that the “subset” of applications presented to the user in a list, such as those in Figure 2, is based on the identity of the user, as recited in claim 1. In the alternative, the Examiner finds Femay’s description of “install” or “uninstall” buttons on the user interface teaches the claimed subset of applications based on the “identity of the user.” Ans. 3^4. Figure 2, for example, illustrates “purchasing information” button 230, which Femay states may read “installed” or “uninstall” if the user has already installed that application on the mobile device. Id.', Femay at | 58. Thus, according to the Examiner, Femay teaches “[t]he display text is associated with the user’s identity on the device.” Ans. 3^4 (emphasis added). This finding of “association,” however, is insufficient to support the Examiner’s rejection of claim 1 because it relates only to the way particular applications are displayed, not which subset of applications are displayed (“selected for 7 Appeal 2015-006363 Application 12/639,165 presentation”) to a user based on the user’s identity, as recited in claim 1. App. Br. 21. Finally, the Examiner further finds the disputed limitation is taught in Figure 4 of Lemay and its accompanying description of an application authentication and download process. Figure 4 is reproduced below. 400 •"? Figure 4 illustrates a particular application 412 that has been selected by a user (from, for example, the list of application objects shown in Fig. 2), application information 406, and purchase information 408 (indicated as “Free” in Figure 4). Ans. 3-A\ Lemay ]Hf 73—76. The Examiner finds the application 412 is a “subset” of applications presented to the user, as recited in claim 1, Ans. 3—4, and the purchase information indicates “whether the user has already installed the application,” Lemay 176. As in Figure 2, however, the application 412 in Figure 2 has not been selected for 8 Appeal 2015-006363 Application 12/639,165 presentation based on the “identity” of the end user, as recited in claim 1. See App. Br. 21—23. Rather, application 412 corresponds to the user’s “selection” (such as by touch input) of an application such as those listed in Figure 2. Lemay 170. And as discussed above, purchase information 408 is merely information associated with the way in which the application is displayed, not which subset of applications are displayed to a user, as recited in claim 1. See supra at 7. For the foregoing reasons, on the record before us we cannot sustain the rejection of claim 1 under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Lemay. We also cannot sustain the same rejection of independent claims 24, 25, and 29, for the same reasons. Finally, we cannot sustain the same rejection of claims 2—6, 8—14, and 16—23, all of which are dependent and include the disputed limitation of independent claim 1. Claims 26—28 and 30 Independent claims 26 and 30, as well as dependent claims 27 and 28, do not include the disputed limitation of claim 1, discussed above. Rather, the claims require a first interface “associated with a first vendor that is operable to provide access to a first subset of applications” and a “first plurality of networked devices is associated with the first vendor,” and a second interface to provide access to a second subset of applications, associated with a second plurality of devices. App. Br. 58 (Claims App’x). Appellants argue the Examiner erred in finding Lemay teaches these limitations. App. Br. 29-32, 34. We disagree. As the Examiner finds, Figures 2 and 4 of Lemay (reproduced above) illustrate purchase information that may indicate “installed” or “uninstall” depending upon whether the application already is installed on the device 9 Appeal 2015-006363 Application 12/639,165 that is displaying the user interface. Ans. 7—9; see also Ans. 8 (finding Lemay teaches multiple devices, multiple interfaces displayed, and multiple subsets of applications presented to the user, Lemay Tflf 55—56, 166—168). The crux of Appellants’ argument is that claims 26—28 and 30 require a preexisting “affiliation between the accessing mobile devices and the application store or the developers” and excludes a “public” storefront such as that taught in Lemay. App. Br. 30-31. We, however, find no such limitations in the claims. The broad, operative phrase recited in the claims, “associated with,” is not defined in the Specification and does not require a “private” storefront. Giving the claims their broadest reasonable interpretation, as we must, In re Am. Acad. ofSci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004), we discern no error in the Examiner’s finding that Lemay teaches the claimed “associations]” between interface, vendor, and networked devices. Ans. 7—9. Accordingly, we sustain the rejection of claims 26—28 and 30 under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Lemay. DECISION We REVERSE the Examiner’s rejections of claims 1—6, 8—14, 16—25, and 29. We AFFIRM the Examiner’s rejections of claims 26—28 and 30. 10 Appeal 2015-006363 Application 12/639,165 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R. § 41.50(f). AFFIRMED-IN-PART 11 Copy with citationCopy as parenthetical citation