Ex Parte Kubovcik et al

Patent Trial and Appeal Board

Jun 26, 2017

13404114 (P.T.A.B. Jun. 26, 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.
13/404,114 02/24/2012 Sean C. Kubovcik 0083-0001 7782
83622 7590 06/28/2017
SNYDER, CLARK, LESCH & CHUNG, LLP
950 Herndon Parkway, Suite 365
HERNDON, VA 20170
EXAMINER
VETTER, DANIEL
ART UNIT PAPER NUMBER
3628
NOTIFICATION DATE DELIVERY MODE
06/28/2017 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):
pto @ snyderLLP. com
docket@ snyderllp.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SEAN C. KUBOVCIK and
ROB P. LEWANDOWSKI
Appeal 2016-005209
Application 13/404,114
Technology Center 3600
Before JOSEPH L. DIXON, JUSTIN BUSCH, and JOHN D. HAMANN,
Administrative Patent Judges.
DIXON, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2016-005209
Application 13/404,114
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
1—4, 6—8, 10, 12—19, 21, 22, and 24—27. We have jurisdiction under 35
U.S.C. § 6(b).
We affirm.
The claims are directed to a mobile reservation application. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A non-transitory computer-readable medium having
stored thereon sequences of instructions which, when executed
by at least one processor, cause the at least one processor to:
receive, from a user, a first input associated with identifying a
shower facility at a travel center or truck stop;
identify a direction in which the user is traveling;
generate, in response to the first input, a first
communication requesting information identifying at least one
shower facility;
forward the first communication to a network device
associated with an entity operating a plurality of travel centers or
truck stops, wherein the first communication includes:
a geographical location comprising global positioning
system (GPS) coordinates obtained by a GPS unit associated
with the user, and
information identifying the direction in which the user is
traveling;
receive, from the network device, information identifying
a plurality of shower facilities, wherein each shower facility is
located at a different one of the plurality of travel centers or truck
stops than other ones of the plurality of shower facilities, and
each shower facility is located within a predetermined distance
of the geographical location obtained by the GPS unit associated
with the user in a forward direction with respect to the direction
in which the user is traveling;
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output, to a display, information identifying names of a
plurality of travel centers or truck stops corresponding to the
plurality of shower facilities;
receive, from the user, a second input selecting a first one
of the plurality of shower facilities located at a first one of the
plurality of travel centers or truck stops;
generate, in response to the second input, a second
communication requesting that a shower at the first shower
facility be reserved for the user; and
receive, from the network device, at least one of a
confirmation code or an identification code associated with a
reserved shower at the first shower facility.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Spitzer US 2004/0225582 A1 Nov. 11,2004
Betancourt et al. US 2008/0208701 A1
(hereinafter “Betancourt”)
Aug. 28, 2008
Yenni et al. US 2009/0119142 Al
(hereinafter “Yenni”)
May 7, 2009
Ferrara et al. US 2009/0281817 Al
(hereinafter “Ferrara”)
Nov. 12, 2009
Kaplan et al. US 2010/0042318 Al
(hereinafter “Kaplan”)
Feb. 18, 2010
Soroca et al. US 2010/0063877 Al
(hereinafter “Soroca”)
Mar. 11,2010
The one stop for all your travel needs \ Truck Drivers — Showers,
TravelCenters of America, http://web.archive.org/web/201005160
35952/ http://www.tatravelcenters.com/drivers/truck-drivers/services/
showers (last visited July 17, 2012) (hereinafter “Showers”)
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REJECTIONS
The Examiner made the following rejections:
Claims 1—4, 6—8, 10, 12—19, 21, 22, and 24—27 stand rejected under
35 U.S.C. § 101 because the claimed invention is directed to non-statutory
subject matter.
Claims 1—3, 7, 8, 10, 12, 15, 16, 25, and 27 stand rejected under pre-
AIA 35 U.S.C. § 103(a) as being unpatentable over Betancourt in view of
Soroca.
Claim 4 stands rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Betancourt in view of Soroca as applied to claim 1 above,
further in view of Showers.
Claims 6, 17, and 24 stand rejected under pre-AIA 35 U.S.C. § 103(a)
as being unpatentable over Betancourt in view of Soroca as applied to claim
1 above, further in view of Kaplan.
Claims 13 and 14 stand rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over Betancourt in view of Soroca as applied to claim 10
above, further in view of Yenni.
Claim 18 stands rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Betancourt in view of Soroca as applied to claim 10
above, further in view of Spitzer.
Claims 19, 21, 22 and 26 stand rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Betancourt in view of Yenni and
Ferrara.
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ANALYSIS
The Examiner makes a new ground of rejection in the Examiner’s
Answer, rejecting all claims as directed to non-statutory subject matter.
Appellants respond to the rejection in the Reply Brief.
We have reviewed the Examiner’s rejections (Final Act. 4—14; Ans.
3—4) in light of Appellants’ contentions in the Appeal Brief (App. Br. 10—
34) and the Reply Brief (Reply Br. 3—29) that the Examiner has erred, as
well as the Examiner’s response (Ans. 4—8) to Appellants’ arguments in the
Appeal Brief. We disagree with Appellants’ conclusions.
We concur with the conclusions reached by the Examiner, and adopt
as our own (1) the findings and reasons set forth by the Examiner in the
action from which this appeal is taken, and (2) the reasons set forth by the
Examiner in the Examiner’s Answer in response to Appellants’ Appeal
Brief. We highlight and amplify certain teachings and suggestions of the
references, as well as certain ones of Appellants’ arguments as follows.
35U.S.C. § 101
Appellants argue claims 1—4, 6—8, 10, 12—19, 21, 22, and 24—27 as a
group. See Reply Br. 3. We select claim 1 as the representative claim for
this group, and the remaining claims 2—4, 6—8, 10, 12—19, 21, 22, and 24—27
stand or fall with claim 1. 37 C.F.R. § 41.37(c)(l)(iv).
For the reasons discussed in detail below, Appellants’ arguments do
not persuade us as to error in the rejection.
The Examiner analyzed the claims in accordance with the two-step
framework for determining whether claimed subject matter is judicially-
excepted from patent eligibility under § 101 as articulated in Alice Corp.
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Pty. Ltd. v. CLS Bank International, 134 S. Ct. 2347 (2014). (Ans. 2—3, 4—
8).
According to Alice step one, “[w]e must first determine whether the
claims at issue are directed to a patent-ineligible concept,” such as an
abstract idea. Alice, 134 S. Ct. at 2355.
In accordance therewith, the Examiner found that (1) “[t]he claims are
directed to the abstract idea of coordinating the reservation of shower
facilities and other services at travel centers for people based on availability,
estimated wait time, location, and other factors (as shown in the recited
functions of claims 1-4, 6-8, 10, 12-19, 21, 22, and 24-27), which is a
method of organizing human activities” (Ans. 3), and (2) the additional
elements or combination of elements in the claims other than the abstract
idea per se amount to no more than: (i) mere instructions to implement the
idea on a computer, and/or (ii) recitation of generic computer structure that
serves to perform generic computer functions that are well-understood,
routine, and conventional activities previously known to the pertinent
industry. Viewed as a whole, these additional claim elements do not provide
meaningful limitations to transform the abstract idea into a patent eligible
application of the abstract idea such that the claims amount to significantly
more than the abstract idea itself. Therefore, the claims are rejected under
35U.S.C. § 101 as being directed to non-statutory subject matter. (Ans. 3—
4). From this, the Examiner determined that the claimed subject matter runs
afoul of 35 U.S.C. § 101.
With respect to step 2A of the Alice analysis, Appellants contend:
Initially, the Appellants disagree with the characterization of
claim 1 as directed to “coordinating the reservation of shower
facilities and other services at travel centers for people based on
availability, estimated wait time, location, and other factors” as
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being an impermissibly reductive characterization of the
specifically recited features of claim 1. That is, the Examiner has
ignored significant features in the claims to come to a conclusion
that the claims are abstract. Such a reductive characterization of
claim 1 constitutes a reversible error.
The Examiner’s Answer also states that the alleged
abstract idea of claim 1 is similar to other abstract ideas held to
be non-statutory by the courts and points to Dietgoal Innovations
LLC v. Bravo Media, 599 Fed. Appx. 956 (Fed. Cir. 2015) and
In re Maucorps. 609 F. 2d 481, 203 USPQ 812 (CCPA 1979).
The Appellants disagree.
(Reply Br. 4). Appellants further contend:
The specifically-recited features of claim 1 cannot be
reasonably construed to correspond to merely a concept relating
to any of the activities discussed above. That is, the recited
features performed by a processor require operations, such as
identifying a direction of travel, forwarding information to a
network device including GPS coordinates and the direction of
travel, as well as receiving information from the network device
and generating a response requesting reservation of a shower at
a first shower facility. A mere concept relating to interpersonal
and intrapersonal activities, advertising, marketing, and sales
activities or behaviors could not result in a shower reservation as
required by the detailed operations of claim 1.
(Id. at 6).
We disagree with Appellants’ characterization of independent claim 1.
Although Appellants proffered that the claimed invention is more than a
mere concept, the active steps in the computer implemented method merely
set forth the following steps: 1) “receive” an input; 2) “generate” a
communication; 3) “forward” the communication; 4) “receive” information
identifying shower facilities; 5) “output” the travel center information; 6)
“generate” a request for a reservation; and 7) “receive” a confirmation code.
We note that the individual steps do not set forth any specific
structure, architecture, or specific input/output equipment and merely set
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forth the general concepts of a dialogue between a user and a second party to
establish a reservation. Consequently, we find the claim merely recites
generic computer structure that serves to perform generic computer
functions that are well-understood, routine, and conventional activities
previously known to the pertinent industry. As a result, the additional claim
elements donot provide meaningful limitations to transform the abstract idea
into a patent eligible application of the abstract idea such that the claims
amount to significantly more than the abstract idea itself.
Appellants further contend:
The pending claims, such as claim 1, are similarly rooted in
computer technology, such as the use of GPS and forwarding and
receiving communications/information to/from a network
device, to overcome a problem with a driver being able to
efficiently reserve a shower, and that takes into consideration the
driver’s direction of travel and geographical location obtained by
a GPS unit.
(Reply Br. 6—7).
We disagree with Appellants’ conclusion that the claim is “rooted in
computer technology” where the claim limitations only peripherally mention
a processor. Moreover, as discussed above, the claims merely use the
computer technology to complete the task of organizing human activity; the
claims are not “rooted in computer technology in order to overcome a
problem specifically arising in the realm of’ any of the recited technology,
such as GPS equipment or generic computer processors. See DDR Holdings,
LLCv. Hotels.com, 773 F.3d 1245, 1257 (Fed. Cir. 2014); See also Alice
Corp. Pty. Ltd. v. CLS Bank Intern., 134 S.Ct 2347, 2351 (finding claims
were directed to an abstract concept, in part, because the claims do not
“purport to improve the functioning of the computer itself or effect an
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improvement in any other technology or technical field”). Consequently, we
agree with the Examiner that claim 1 is directed to an abstract idea of
reserving a shower at a travel center. (Ans. 3).
With respect to step 2B of the Alice test, Appellants contend that “the
claim elements, taken as a whole, amount to significantly more than an
abstract idea.” (Reply Br. 7). Additionally, Appellants contend the claims
are more than:
mere instructions to apply an abstract idea or a generic computer
structure to perform generic computer functions that are
conventional activities known in the pertinent industry. Instead,
these features of claim 1 provide a unique and interactive process
to allow a user to reserve a shower in an efficient manner.
Similar to the findings in DDR Holdings, LLC v. Hotels.com
(Fed. Cir. 2014) the solution provided by claim 1 “is necessarily
rooted in computer technology” in order to overcome a problem
specifically arising in the area of making shower reservations
remotely by communicating with a network device (see DDR
Holdings, 13-1505, at 20).
That is, claim 1 recites specific features associated with
the user of a GPS unit and forwarding and receiving information
to/from a network device to facilitate the reservation process.
Such features are clearly not routine or conventional activities
known in the industry. As such, these features transform the non-
transitory computer-readable medium of claim 1 into a novel and
non-obvious computer-readable medium that amounts to
significantly more than an abstract idea itself, or an
implementation of an abstract idea. Therefore, claim 1 is
believed to meet the requirements of 35 U.S.C. § 101 for these
additional reasons.
(Reply Br. 8). Again, we disagree with Appellants and find no “unique and
interactive process” recited in the language of independent claim 1. The
claims merely use the GPS unit in a conventional manner to identity and
forward location information, which is simply a part of the abstract concept
of making a reservation based on a user’s location.
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Appellants generally contend “some limitations when viewed
individually may not amount to significantly more than the abstract idea;
however, when looking at the additional limitations as an ordered
combination, the invention as a whole amounts to significantly more than
the abstract idea.” {Id. at 9).
We disagree with Appellants and find that Appellants have not
identified how the features of claim 1, taken as an ordered combination,
amount to significantly more than the abstract idea. Consequently,
Appellants’ argument does not show error in the Examiner’s factual findings
or legal conclusion of a lack of patent eligible subject matter in independent
claim 1.
Appellants present general arguments that limitations in independent
claim 1 are similar to Reasons i, v, and vi from the Abstract Idea Workshop
II Materials (hereinafter “Workshop II”) issued by the USPTO (Feb. 2016),
illustrating the application of the “significantly more inquiry.” {Id. at 9—11).
With respect to Reason i, Appellants contend that claim 1 “improve[sJ
another technology or technical field” and “improve[s] the interactions
between a customer and a travel center or truck stop to facilitate a
reservation for a shower.” (Reply Br. 10). We disagree with Appellants and
find that claim 1 does not “improve another technology or technical field”
(emphasis added). At most, we find independent claim 1 merely tangentially
uses well-known computer processor and GPS data with a display with no
improvement to any of those well-known devices. Appellants’ own
statement contradicts their position, because it states it “improves the
interactions between a customer and a” provider of services, which is
improving a business interaction, not a technology or technical field.
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With respect to Reason v, Appellants contend that a claim may
amount to significantly more when one or more elements recited therein
“adds a specific limitation other than what is well-understood, routine and
conventional in the field.” (Id.). Appellants repeat the language of the claim
and argue “[wjhile the use of GPS is generally known, claim 1 uses GPS
coordinates in addition to a direction of travel to facilitate the identification
of one or more travel centers or truck stops. Such features are not well
understood, routine and conventional in the field.” (Id. at 11).
We disagree with Appellants and, as discussed above, the claims
merely use the GPS functionality in a conventional manner and integrate that
function into the abstract process of making a reservation based on user
location and direction of travel. Consequently, Appellants’ argument does
not show error in the Examiner’s conclusion of a lack of patent eligible
subject matter.
With respect to Reason vi, Appellants contend a claim may amount to
significantly more when one or more elements recited “adds unconventional
steps that confines the claim to a particular useful application.” (App. Br.
11). We disagree with Appellants’ contention that receiving GPS data from
a GPS unit is unconventional. Consequently, Appellants’ argument does not
show error in the Examiner’s conclusion of a lack of patent eligible subject
matter in representative independent claim 1.
Appellants set forth similar arguments with respect to independent
claims 10 and 19, and Appellants do not set forth separate arguments for
patentability of dependent claims 2—8, 9, 12—18, 21, 22, and 24—27. (Reply
Br. 12—15). We disagree with Appellants’ arguments for the reasons
discussed above, and Appellants’ arguments do not show error in the
Examiner’s conclusion of a lack of patent eligible subject matter.
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Additionally, examining earlier cases can have a role, especially in
deciding whether a concept that claims are found to be directed to is an
abstract idea. See Amdocs (Israel) Limited v. Openet Telecom, Inc., 841
F.3d 1288, 1294 (Fed. Cir. 2016) (“Instead of a definition [for what an
“abstract idea” encompasses], then, the decisional mechanism courts now
apply is to examine earlier cases in which a similar or parallel descriptive
nature can be seen—what prior cases were about, and which way they were
decided.”)
Although we do not consider the specific cases either controlling or
germane, that panel’s consideration of evidence in making a determination
under the first step of the Alice framework has merit. A similar approach
was taken in Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229 (Fed. Cir. 2016).
But these cases do not stand for the proposition that Examiners must provide
evidentiary support in every case before a conclusion can be made that a
claim is directed to an abstract idea. There is no such requirement. See, e.g.,
para. IV “July 2015 Update: Subject Matter Eligibility” to 2014 Interim
Guidance on Subject Matter Eligibility (2014 IEG), 79 Fed. Reg. 74618
(Dec. 16, 2014) (“The courts consider the determination of whether a claim
is eligible (which involves identifying whether an exception such as an
abstract idea is being claimed) to be a question of law. Accordingly, courts
do not rely on evidence that a claimed concept is a judicial exception, and in
most cases resolve the ultimate legal conclusion on eligibility without
making any factual findings” (emphasis added)). Evidence may be helpful
in certain situations where, for instance, facts are in dispute. But it is not
always necessary. It is not necessary in this case.
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We find the Examiner properly and reasonably found that claim 1 is
directed to an “abstract idea.” Cf. Apple, 842 F.3d at 1240-41 (“An abstract
idea can generally be described at different levels of abstraction. As the
Board has done, the claimed abstract idea could be described as generating
menus on a computer, or generating a second menu from a first menu and
sending the second menu to another location. It could be described in other
ways, including, as indicated in the specification, taking orders from
restaurant customers on a computer.”) Additionally, as in Apple, we find
Appellants have not invented a processor, Global Positioning System (GPS)
or direction data, and it was known at that time to use those technologies as
ways of gathering and entering data into computer.
We should add that Appellants themselves have put forward no
rebuttal evidence showing claim 1 is not directed to an abstract idea or, if
directed to information generation — irrespective of the level of abstraction
to which it may be described—it is not an abstract idea.
With respect to the second step of the Alice framework, none of
the individual steps, viewed “both individually and ‘as an ordered
combination,’” transform the nature of the claim into patent-eligible subject
matter. See Alice, 134 S. Ct. at 2355 (quoting Mayo, 132 S. Ct. at 1297,
1298). The claimed sequence of steps comprises only “conventional steps,
specified at a high level of generality,” which is insufficient to supply an
“inventive concept.” Id. at 2357 (quoting Mayo, 132 S. Ct. at 1294, 1297,
1300).
We have considered all the Appellants’ arguments, but find them
unpersuasive as to error in the lack of patent eligible subject matter rejection.
The rejection is sustained.
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35 U.S.C. § 103
With respect to the obviousness rejection, Appellants present
arguments to claims in groups. We address the groups as set forth in the
Appeal Brief.
With respect to claims 1—3, 7, and 8, Appellants argue the claims
together. (App. Br. 10). We select independent claim 1 as the representative
claim for the group and address Appellants’ arguments thereto. Appellants
generally contend that the Betancourt reference does not disclose or suggest
forwarding a communication that includes geographical information, but
rather a truck can communicate with a network only when it comes within
range of the wireless network. {Id. at 11—12).
The Examiner finds that a traveling vehicle has a “route” that
necessarily includes a direction of travel, and the Betancourt reference
discloses using convenience to the truck’s route as a factor in determining
facilities. (Ans. 5; see also Betancourt 143). We agree with the Examiner.
The Examiner further finds that the Soroca reference teaches the use of a
GPS location and transmission of a direction of travel. (Ans. 5). We agree
with the Examiner.
We find the Appellants’ arguments are mainly limited to the discrete
embodiment of the Betancourt reference where the communication between
the truck and the travel centers begins when the truck enters the specific
location at the travel center rather than communications along the route as
proffered by the Examiner.
We find Appellants’ argument regarding “[t]he allegation that the
signal transmitted by the truck/driver in Betancourt includes geographical
information, much less a request for information identifying a shower
facility is factually erroneous” unavailing. (Reply Br. 17). We further find
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Appellants’ arguments regarding solely the Betancourt reference (Id. at 16—
23) do not consider the totality of the combination as relied upon by the
Examiner in the rejection. Consequently, Appellants’ arguments do not
show error in the Examiner’s findings of fact or conclusion of obviousness
of independent claim 1.
We further find that the Betancourt reference teaches and suggests
providing a current wait time and directions to the service station which
would have clearly suggested to one of ordinary skill in the art that location
and a direction of travel would be desirable for proper identification of
correct directions being sent to the driver. (See Betancourt 135; see also
Sorocall 100, 154, 223, 341, 401, 455, 502, 532, 811, 881, 884, 956, 1426).
Appellants further contend that the Betancourt reference “teaches
away from forwarding the direction of travel” because the Betancourt
reference specifically discloses sending communications to all stations
within a predetermined distance of the trucker’s location, which would
necessarily include stations located in all directions with respect to the
driver’s current direction of travel. (Id. at 15).
Although Appellants contend the references “teach away” from
forwarding a direction of travel (id.), our reviewing court guides: “A
reference may be said to teach away when a person of ordinary skill, upon
reading the reference, would be discouraged from following the path set out
in the reference, or would be led in a direction divergent from the path that
was taken by the applicant.” Ricoh Co., Ltd. v. Quanta Computer, Inc., 550
F.3d 1325, 1332 (Fed. Cir. 2008). Here, we are unpersuaded that the
Betancourt reference teaches away from (discourages) transmission of
information identifying direction of travel. We are unconvinced the
Betancourt reference actually criticizes, discredits, or otherwise discourages
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investigation into the claimed solution. See In re Fulton, 391 F.3d 1195,
1201 (Fed. Cir. 2004).
Appellants further contend that:
even if Soroca’s use of GPS was combined with Betancourt, the
combination would not disclose or suggest instructions that
cause at least one processor to forward the claimed first
communication requesting information identifying at least one
shower facility that includes a geographical location and
information identifying a direction in which the user is traveling.
(App. Br. 16). We disagree with Appellants’ argument and find that the
combination of the Betancourt and Soroca references would have taught and
suggested the communication of a geographical location and information
identifying a direction in which the user is traveling.
We give a disputed claim term its broadest reasonable interpretation,
consistent with the Specification. In re Hyatt, 211 F.3d 1367, 1372 (Fed.
Cir. 2000). We find no express definition of “information identifying a
direction in which the user is traveling” in the Specification, and Appellants
point to none. Instead, Appellants continue to repeat the language of the
claim and generally contend that the Soroca reference does not forward any
communication from mobile communication facility 102 identifying the
direction in which the user is traveling, as required by claim 1.
Appellants further contend that the Soroca reference predicts the route or
direction of travel based on multiple location recordings. (Reply Br. 20-
21). Though understanding the claim language may be aided by
explanations contained in the written description, a particular embodiment
may not be read into a claim when the claim language is broader than the
embodiment. SuperGuide Corp. v. DirecTV Enters, Inc., 358 F.3d 870, 875
(Fed. Cir. 2004).
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Giving the language of the claim its broadest reasonable
interpretation, we agree with the Examiner that both the Betancourt and
Soroca references teach and suggest “information identifying direction of
travel.” Consequently, Appellants’ argument does not show error in the
Examiner’s factual findings or conclusion of obviousness.
With respect to the Appellants’ hindsight and motivation to combine
arguments (App. Br. 20—21), the Examiner maintains that both the
Betancourt and Soroca references are directed to similar systems for
reserving nearby services for mobile users traveling in vehicles, and could
have been implemented through routine engineering producing predictable
results. (Ans. 6). Appellants present a general argument to the combination
and motivation. (Reply Br. 22—23). We disagree with Appellants’
contention and find it unavailing to show error in the Examiner’s findings or
conclusion of obviousness based upon the combination of the Betancourt
and Soroca references. As a result, we sustain the rejection of representative
independent claim 1.
Claims 10, 12, 15, and 16
With respect to claims 10, 12, 15, and 16, Appellants argue the claims
together and rely upon the arguments advanced with respect to independent
claim 1. (App. Br. 21—22). We select independent claim 10 as the
representative claim. Because we found the arguments to be unpersuasive
with respect to independent claim 1, we find these same arguments
unpersuasive to show error in the Examiner’s obviousness rejection with
respect to representative independent claim 10, and we sustain the rejection
thereof.
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Claim 25
With respect to dependent claim 25, Appellants repeat the language of
the claim and rely upon the arguments advanced with respect to claim 1.
{Id. at 22—23). Because we found the arguments to be unpersuasive with
respect to independent claim 1, we find Appellants’ arguments similarly
unpersuasive to show error in the Examiner’s obviousness rejection with
respect to dependent claim 25, and we sustain the rejection thereof.
Claim 27
With respect to dependent claim 27, the Examiner finds that the claim
recites nonfunctional descriptive material which is not entitled to patentable
weight. (Ans. 7). Appellants generally contend that the Examiner’s
allegation is legally and factually incorrect and the features of the claim
should be accorded patentable weight. (App. Br. 23—24; Reply Br. 24).
We disagree with Appellants and find that there is no functional
relationship of the claimed information in the computer implemented
method of independent claim 10. Consequently, the content of the
information does not further distinguish or limit the claimed invention to
distinguish over the combination, as the Examiner has identified. Therefore,
we find Appellants’ argument does not show error in the Examiner’s
findings fact or conclusion of obviousness, and we sustain the rejection
thereof.
Claim 4, 6, 17, and 24
Appellants do not set forth separate arguments for patentability of the
claims, and Appellants rely upon the arguments advanced with respect to
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independent claim 1. (App. Br. 23—24). As a result, we group these claims
as falling with representative independent claim 1.
Claims 13 and 14
Appellants do not set forth separate arguments for patentability and
argue the claims together. {Id. at 25). We select dependent claim 13 as the
representative claim for the group and address Appellants’ arguments
thereto. Appellants contend that the Yenni reference does not teach or
suggest the limitations of dependent claim 13 regarding the calculation of
the estimated wait/queue time for a shower. (App. Br. 25—30; Reply Br. 25—
27).
The Examiner maintains that the claims do not set forth a specific
mathematical formula/algorithm for calculating the wait time and
consequently the limitations do not distinguish from the teachings of the
Yenni reference. We agree with the Examiner that the language of
dependent claim 13 merely sets forth the variables for use in a determination
of a shower availability. While we agree with Appellants that the Yenni
reference does not specifically address the specific shower parameters
recited, we agree with the Examiner that the Yenni reference teaches and
fairly suggests the use of similar parameters regarding restroom facilities,
which would have fairly suggested to one of ordinary skill in the art the use
of the variables as recited in the language of dependent claim 13 in the
combination of the Betancourt and Soroca references.
Appellants present arguments to the specific parameters used in the
calculation of shower wait time, but Appellants do not address the
suggestion in the Yenni reference concerning restroom calculations as it
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would apply to a shower wait time estimate as taught by the combination of
the Betancourt and Soroca references. (Reply Br. 25—27).
As a result, we find Appellants’ arguments do not show error in the
Examiner’s findings of fact or conclusion of obviousness of dependent claim
13 and dependent claim 14 not argued separately.
Claim 18
Appellants argue that the Spitzer reference does not remedy the
deficiencies in the Betancourt and Soroca references as discussed above with
respect to claim 10. (App. Br. 30). Because Appellants’ argument did not
show error in the rejection of claim 10, Appellants’ arguments similarly do
not show error in the Examiner’s findings of fact or conclusion of
obviousness of dependent claim 18.
Claims 19, 21, and 22
Appellants argue the claims together. (App. Br. 31—33; Reply Br. 28—
29). We select independent claim 19 as the representative claim for the
group and will address Appellants’ arguments thereto.
With respect to independent claim 19, Appellants repeat the language
of the claim and rely upon the arguments advanced with respect to
dependent claim 13. Appellants further contend that “Yenni clearly does not
disclose or suggest estimating a wait time based on an average shower time
and an average time for cleaning a shower, as required by claim 19.” (App.
Br. 32). Appellants further contend that the Ferrara reference does not
remedy the deficiency. Appellants also argue that the Examiner has “not
provide[d] the requisite motivation for combining Ferrara with the
combination of Betancourt and Yenni.” (Reply Br. 29).
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The Examiner maintains that Appellants argue the references
individually. (Ans. 8). Additionally, the Examiner has set forth a discussion
in the Final Office Action of each of the prior art references and how the
teachings would have been combined. The Examiner explained:
Although Yenni does not explicitly teach the queue is electronic;
this is taught by Ferrara 0012, 19). It would have been prima
facie obvious to one having ordinary skill in the art to incorporate
this feature for the same reason it is useful in Ferrara-namely, to
avoid a physical queue and provide updates. Moreover, this is
merely a substitution of the queue in Ferrara for the queue in
Yenni. Both are disclosed in the art of providing services to
customer as ways to determine order of service. Based on the
level of skill displayed in the references, this substitution could
have been implemented through routine engineering producing
predictable results.
(Final Act. 13—14). We agree with the Examiner’s findings and conclusion
and find Appellants’ argument does not show error in the rejection of
representative claim 19 as set forth by the Examiner.
Claim 26
Appellants rely upon the arguments advanced with respect to
dependent claim 13. (App. Br. 33—34). Because we found Appellants’
arguments to be unpersuasive with respect to claim 13, we similarly find
them unpersuasive with respect to claim 26.
CONCEUSIONS
The Examiner did not err in rejecting the claims 1—4, 6—8, 10, 12—19,
21, 22, and 24—27 under 35 U.S.C. §§ 101 and 103.
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DECISION
For the above reasons, we sustain the Examiner’s rejection of claims
1—4, 6—8, 10, 12—19, 21, 22, and 24—27 based upon a lack of patent eligible
subject matter under 35 U.S.C. § 101, and we sustain the Examiner’s
rejections of claims 1—4, 6—8, 10, 12—19, 21, 22, and 24—27 based upon
obviousness under 35 U.S.C. § 103.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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