Ex Parte Krzyzanowski et al

Patent Trial and Appeal Board

Jan 18, 2017

12639165 (P.T.A.B. Jan. 18, 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.
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.
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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.
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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
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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.
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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
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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
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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
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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
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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.
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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
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