Ex Parte Wanek et al

Patent Trial and Appeal Board

Mar 29, 2017

13107352 (P.T.A.B. Mar. 29, 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.
13/107,352 05/13/2011 James Wanek WBOT01-100US1 7237
65360 7590
John Boyd
17 Ferris Drive
Old Greenwich, CT 06870
EXAMINER
COPPOLA, JACOB C
ART UNIT PAPER NUMBER
3621
NOTIFICATION DATE DELIVERY MODE
03/31/2017 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):
john.boyd @ fisherbroyles.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAMES WANEK,
ARIF AYUB, and JOHN BOYD
Appeal 2014-0037211
Application 13/107,3 522
Technology Center 3600
Before ANTON W. FETTING, NINA L. MEDLOCK, and
MATTHEW S. MEYERS, Administrative Patent Judges.
MEYERS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1—6, 17, and 19-30. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
1 Our decision references Appellants’ Appeal Brief (“Br.,” filed
September 6, 2013), the Examiner’s Answer (“Ans.,” mailed
December 5, 2013), and Final Office Action (“Final Act.,” mailed May 16,
2013).
2 Appellants identify Weabot, Inc., as the real party in interest (Br. 1).
Appeal 2014-003721
Application 13/107,352
CLAIMED INVENTION
Appellants’ claims relate to “methods and systems that target
advertisements using real-time information including location-based, defined
geolocation territory rights (e.g., GeoEstate rights) and weather-related
information” (Spec. 11).
Claims 1 and 19 are the independent claims on appeal. Claim 1,
reproduced below with added bracketed notations, is illustrative of the
subject matter on appeal:
1. A method for delivering a message to a mobile device,
comprising[:]
[a] selecting one or more messages targeted based on
location-based, advertiser defined geolocation territory rights
and also based on said mobile device’s location and weather
conditions relating to said mobile device’s location and
[b] transmitting said message to said mobile device over a
network,
[c] wherein said method uses one or more computer-based
systems including a computer-readable medium having
computer-executable components for performing said method.
REJECTIONS
Claims 1—6, 17, and 19-30 are rejected under 35 U.S.C. § 101 as
being directed to non-statutory subject matter.
Claims 1—6, 17, and 19—30 are rejected under 35 USC § 112, second
paragraph, as being indefinite.
Claims 17 and 30 are rejected under 35 USC § 112, fourth paragraph,
as being of improper dependent form for failing to further limit the subject
matter of a previous claim.
2
Appeal 2014-003721
Application 13/107,352
Claims 1—3, 17, 19-22, 24, 25, 29, and 30 are rejected under
35 U.S.C. § 102(b) as being anticipated by Gelfand (US 2008/0268876 Al,
pub. Oct. 30, 2008).
Claims 1—6, 17, 19, 21, and 23—30 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Bishop (US 2010/0076849 Al, pub.
Mar. 25, 2010) and Jablokov (US 2009/0076917 Al, pub. Mar. 19, 2009).
Claims 1—6, 17, 19-22, 24, 25, and 27—30 are rejected under
35 U.S.C. § 103(a) as being unpatentable over Bishop and Gelfand.
ANALYSIS
35 U.S.C. §101
Independent claims 1 and 19, and dependent claims 2—6, 17, and 20—30
In rejecting claims 1—6, 17, and 19-30 under 35 U.S.C. § 101, the
Examiner finds “[bjased upon consideration of all of the relevant factors
with respect to the claims as a whole, the claims are directed to abstract idea
and are therefore rejected as ineligible subject matter under 35 U.S.C. § 101”
(Final Act. 3). The Examiner concludes that independent claims 1 and 19
are directed to non-statutory subject matter because the claimed method does
not satisfy the Bilski machine-or-transformation test, i.e., the method is not
tied to a particular machine and does not transform the underlying subject
matter to a different state or thing (id.). The Examiner also finds the
“selecting” steps recited by independent claims 1 and 19 “do[] not
necessarily require a machine because th[ese] steps could be performed
mentally” and the “transmitting” steps recited by independent claims 1 and
19 “merely represent[] a post solution element” (id.).
3
Appeal 2014-003721
Application 13/107,352
Appellants argue, inter alia, that the Examiner erred in rejecting
claims 1—6, 17, and 19-30 under 35 U.S.C. § 101 as being directed to non-
statutory subject matter because “[t]he Examiner asserts the claim is directed
to an ‘abstract idea’, yet fails to describe the ‘abstract idea’ purported to be
preempted by the claim” (Br. 10). We agree with Appellants.
In the Response to Arguments portion of the Answer, the Examiner
merely states that “[t]he Examiner has carefully considered Appellants’
arguments. See 2013 September Brief, pages 9—18. However, Appellants’
arguments are not persuasive. The Examiner maintains the rejection under
35 USC § 101 as set forth in the 2013 May Final Office Action (see
paragraphs 5—15 and 56—59).” Thus, we are persuaded by Appellants’
argument that the Examiner has not articulated an abstract idea.
On this record, the Examiner has failed to establish a prima facie case
of patent-ineligibility for independent claims 1 and 19. Therefore, we do not
sustain the Examiner’s rejection of claims 1—6, 17, and 19-30 under 35
U.S.C. § 101.
35 U.S.C. § 112, second paragraph
Independent claims 1 and 19, and dependent claims 2—6, 17, and 20—30
The Examiner rejected independent claims 1 and 19 and their
dependent claims as indefinite under 35 U.S.C. § 112, second paragraph,
because “[t]he limitation ‘computer-executable components for performing
said method” invokes 35 [U.S.C. § 112], sixth paragraph, and the limitation
is indefinite because the [Specification does not clearly link and associate
sufficient structure to the function of ‘performing said method’” (Ans. 10
(emphasis omitted)). More particularly, the Examiner finds that although
4
Appeal 2014-003721
Application 13/107,352
claim 1 “does not recite ‘means for,’ the Examiner finds that the claimed
‘computer-executable components for’ is a non-structural term’” (Ans. 8),
“the phrase recites the function of ‘performing said method’” {id.), and “the
claim does not recite sufficient structure for performing the entire function
of ‘performing said method’” {id. at 9). The Examiner also finds that “the
original [Specification does not clearly link and associate sufficient
corresponding structure to the function of ‘performing said method’” {id.).
In response, Appellants do not provide any evidence to rebut the
presumption that § 112, sixth paragraph, applies; but rather, simply argue
that the claims do not expressly include the terms “means” or “step,”
however, that alone is not a persuasive argument as to error in the rejection.
Although Appellants state that “Appellants directed the Examiner’s attention
to the Detailed Description of the Invention of the present application,
specifically, pages 7—12 and 29-33. The claims are directed to a method
performed by one or more computer-based systems” (Br. 19), this too is not
a persuasive argument to show error in the Examiner’s rejection.
Here, when the corresponding structure is computer components, the
Specification must further disclose an algorithm for implementing the
recited function of “performing said method,” i.e., “selecting one or more
messages targeted based on location-based, advertiser defined geolocation
territory rights and also based on said mobile device’s location and weather
conditions relating to said mobile device’s location” and “transmitting said
message to said mobile device.” Aristocrat Techs. Australia Pty Ltd., v. Int’l
Game Tech., 521 F.3d 1328, 1333 (Fed. Cir. 2008) {quotingHarris Corp. v.
Ericsson Inc., 417 F.3d 1241, 1253 (Fed. Cir. 2005) (‘“[t]he corresponding
structure for a § 112^6 claim for a computer-implemented function is the
5
Appeal 2014-003721
Application 13/107,352
algorithm disclosed in the specification.’”). We have reviewed the
Specification, but are unable to identify such an algorithm. In the absence of
such an algorithm, independent claims 1 and 19 are indefinite, pursuant to
35 U.S.C. § 112, second paragraph. Net Money IN, Inc. v. Verisign, Inc. 545
F.3d 1359, 1367 (Fed. Cir. 2008) (‘“[A] means-plus-fimction claim element
for which the only disclosed structure is a general purpose computer is
invalid if the specification fails to disclose an algorithm for performing the
claimed function.”) See also Blackboard, Inc. v. Desire2Learn Inc., 574
F.3d 1371, 1382-83 (Fed. Cir. 2009) (finding Blackboard’s means-plus-
function claims indefinite because the patent describes an undefined
component, i.e., a black box, that performs the recited function but does not
disclose how the component performs the function). See further Ex parte
Catlin, 90 USPQ2d 1603, 1605 (BPAI 2009) (precedential) (during
prosecution, computer-enabled means-plus-function claims will be held
unpatentable under 35 U.S.C. § 112, second paragraph, as being indefinite if
a Specification fails to disclose any algorithm corresponding to the recited
function in the claims).
Accordingly, we sustain the Examiner’s rejections under 35 U.S.C.
§112, second paragraph.
35 U.S.C. § 112, fourth paragraph
Dependent claims 17 and 30
Claim 17 depends directly from independent claim 1 and claim 30
depends directly from independent claim 19 (Claims App.). Independent
claims 1 and 19 are each directed to “[a] method for delivering a message to
a mobile device” (id.). Independent claims 1 and 19 also each recites
6
Appeal 2014-003721
Application 13/107,352
“wherein said method uses one or more computer-based systems including a
computer-readable medium having computer-executable components for
performing said method” (id.).
Dependent claim 17 recites “[a] computer based system for
performing the method of claim 1, comprising one or more computer-based
systems for selecting and delivering said messages to said mobile device,
wherein said one or more computer-based systems include a computer-
readable medium having computer-executable components for performing
the method (id.). Dependent claim 30 recites “[a] computer based system
for performing the method of claim 19, comprising one or more computer-
based systems for delivering said messages and one or more mobile devices
for receiving said messages” (id.).
In rejecting claims 17 and 30, the Examiner states “[t]he test as to
whether a claim is a proper dependent claim is that it shall include every
limitation of the claim from which it depends or in other words that it shall
not conceivably be infringed by anything which would not also infringe the
basic claim” (Final Act. 9 (citing MPEP § 608.01 (n) Section III)). More
particularly, the Examiner rejects claim 17 as being of improper form
because
claim 17 can be infringed by mere possession of the “system for
performing the method of claim 1” without performing any of
the steps of claim 1. Note the recitation of “for performing the
method of claim 1” and the recitation of “for selecting and
delivering” is part of a functional language recitation describing
the capability of the system, not a recitation of actual
performance resulting in active method steps. Since no active
steps are recited, claim 1, drawn to a method, would not be
infringed by the mere possession of the system that would
7
Appeal 2014-003721
Application 13/107,352
infringe claim 17. Asa result claim 17 is in improper dependent
form.
(Final Act. 9). The Examiner rejects claim 30 based on the same reasoning
(id.).
Appellants argue that the Examiner erred in determining that
dependent claims 17 and 30 are in “improper dependent form” because
“system claims 17 and 19 are each dependent on method claims and thus
directed to a different statutory class of invention compared to the claims
from which they depend” (Br. 20). We are persuaded by this argument
because the statute requires that “a claim in dependent form” shall “specify a
further limitation of the subject matter claimed” (see 35 U.S.C. § 112, fourth
paragraph). Thus, we find the Examiner does not sufficiently explain why
dependent claims 17 and 30 do not properly specify “further limitations” of
the methods recited in independent claims 1 and 19.
Accordingly, we do not sustain the Examiner’s rejection of dependent
claims 17 and 30 under 35 U.S.C. § 112, fourth paragraph.
35 U.S.C. § 102
Independent claims 1 and 19, and dependent claims 2, 3, 17, 19—22, 24, 25,
29, and 30 rejected as anticipated by Gelfand.
We are not persuaded by Appellants’ argument that the Examiner
erred in rejecting independent claim 1 under 35 U.S.C. § 102(b) because
Gelfand does not disclose “selecting one or more messages targeted based
on location-based, advertiser defined geolocation territory rights and
also based on said mobile device’s location and weather conditions
relating to said mobile device’s location,” as recited by limitation [a] of
independent claim 1 (see Br. 21—25). Independent claim 19 includes a
8
Appeal 2014-003721
Application 13/107,352
substantially similar limitation and is argued on the bases of independent
claim 1 (see Br. 25—26). Instead, we agree with the Examiner that
paragraphs 86 and 89 of Gelfand disclose the argued limitation (see
Ans. 18-28).
In this regard, we note that Gelfand is directed to a system “for
utilizing points-of-interest (POI), locational information and images
captured by a camera of a device to perform visual searching, to facilitate
mobile advertising, and to associate point-of-interest data with location-
tagged images” (Gelfand 12; see also id. 1 86). More particularly, Gelfand
discloses that its system “provide[s] advertising based on mobile visual
search systems as opposed to keyword and PC-based searching systems and
enables an advertiser(s) to convey information to a consumer on a daily
basis, regardless of time of day and location of the user of the mobile
terminal” (id. 121). Gelfand also discloses that its “mobile terminal 10 may
further include a GPS module 70 in communication with the controller 20.
The GPS module 70 may be any means for locating the position of the
mobile terminal 10” (id. 1 50).
Gelfand further discloses that its system “provide[s] exclusive access
or control to advertisers based on a particular region or through global
objects/links as well as ease of use with the concept of a ‘point-through’
business model with zero input from a keyboard of a user's terminal”
(id. 151 see also id. 1 89). For example, Gelfand discloses that an
“advertiser can purchase the rights to advertise a specific category of
product(s) (e.g., books) for a particular location or region (e.g., California)”
(id. 1 89). In another example, Gelfand discloses
9
Appeal 2014-003721
Application 13/107,352
if the image captured by camera module 36 has information
associated with it identifying its location such as New York City
and a temperature or specifies the current weather where the user
of the mobile terminal is located, the visual search server 54 may
generate a list of candidate advertisers (e.g., PEPSI, DR.
PEPPER, etc.) to choose from as well as candidate forms of
advertisement media to be provided to the user (e.g., brand logo,
video clip, audio message, etc.).
{Id. 1 86).
We also are not persuaded by Appellants’ argument
Gelfand is merely providing a list of meta-information which
may be associated with the images. This portion of Gelfand does
not disclose basing or selecting advertisements “based on
location-based, advertiser defined geolocation territory rights
and also based on said mobile device’s location and weather
conditions relating to said mobile device’s location” as claimed.
(Br. 24). At the outset, we note that independent claims 1 and 19 are silent
as to how the “mobile device’s location” and “weather conditions relating to
said mobile device’s location” are determined. As such, we find the meta­
information in Gelfand which includes information identifying a mobile
user’s location and “a temperature” or “the current weather where the user of
the mobile terminal is located” (see Gelfand 1 86), and is used to provide
mobile customers with advertising, to be within the scope of independent
claims 1 and 19. We also note that Gelfand discloses that its system
“provide[s] exclusive access or control to advertisers based on a particular
region” {id. 1 89). Thus, Appellants’ argument is not persuasive to show
error in the Examiner’s rejection.
In view of the foregoing, we sustain the Examiner’s rejection of
independent claims 1 and 19 under 35 U.S.C. § 102(b). We also sustain the
10
Appeal 2014-003721
Application 13/107,352
Examiner’s rejections of claims 2, 3, 17, 19, 21, 22, 25, and 30, which are
not meaningfully argued separately.
Dependent claim 20
Appellants argue
Gelfand does not disclose a plurality of messages stored as set
forth in claim 20 since the reference fails to disclose that the
“stored message is associated with one or more locations
linked with unique defined geolocation territory rights and
weather conditions” and “a respective advertiser having a
place of business within a proximity of the location associated
with the message” as discussed above in relation to claim 1.
(Br. 26—27). However, we agree with, and adopt the Examiner’s findings
and rationale as set forth at pages 28—30 of the Answer. We also note that
Gelfand discloses “transient tags such as visual tag information about
products within a given store, which are only relevant when the user is in the
immediate or very close proximity of those tags (Gelfand 1 69). And, as the
Examiner points out (see Ans. 29-30), Gelfand discloses that an “advertiser
can purchase the rights to advertise a specific category of product(s) (e.g.,
books) for a particular location or region (e.g., California)” (Gelfand 1 89).
In view of the foregoing, we sustain the Examiner’s rejection of
claim 20 under 35 U.S.C. § 102(b).
Dependent claim 24
Appellants argue that Gelfand fails to disclose “wherein said message
selection is also based on an individual’s activity-related information,” as
recited by claim 24 (Br. 27—28). More particularly, Appellants argue
“according to ‘a further preferred embodiment, the message selection is also
11
Appeal 2014-003721
Application 13/107,352
based on an individual’s activity-related information (e.g., walking or
driving)’” {id. 28). However, we agree with the Examiner that Gelfand
discloses the argued limitation and adopt the Examiner’s findings and
rationale as set forth at pages 32—33 of the Answer.
In view of the foregoing, we sustain the Examiner’s rejection of
claim 24 under 35 U.S.C. § 102(b).
Dependent claim 29
Appellants argue that Gelfand fails to disclose “wherein said message
is time-sensitive,” as recited by claim 29 (Br. 29). More particularly,
Appellants argue “[although paragraph 0098 of Gelfand mentions ‘time of
day’, the reference does not disclose time-sensitive messages according to
claim 29” {id.). However, we agree with the Examiner that
Gelfand discloses that the advertiser may establish “time of day”
meta-information with advertisement media. One of ordinary
skill in this art understands that this means the advertiser can
control the “time of day” the advertisement media is selected and
sent to the user. This “time of day” element makes the
advertisement media “time-sensitive,” as claimed.
(Ans. 35 (citing Gelfand 198)).
In view of the foregoing, we sustain the Examiner’s rejection of claim
29 under 35 U.S.C. § 102(b).
35 U.S.C. § 103
Independent claims 1 and 19, and dependent claims 2—6, 17, 21, and 23—30
rejected as obvious over Bishop and Jablokov.
We are not persuaded by Appellants’ argument that the Examiner
erred in rejecting independent claims 1 and 19 under 35 U.S.C. § 103(a)
12
Appeal 2014-003721
Application 13/107,352
because the combination of Bishop and Jablokov does not disclose or
suggest “a method for delivering messaged based on (1) location-based,
advertiser defined geolocation territory rights and also (2) based on said
mobile device's location and (3) weather conditions relating to said mobile
device's location,” as required by independent claims 1 and 19 (see Br. 30—
31). Instead, we agree with, and adopt the Examiner’s findings and rationale
as set forth at pages 35—37 of the Answer. We add the following discussion
for emphasis only.
Bishop is directed to a system “for managing advertising services for
mobile devices and users” (Bishop 115). Bishop discloses that its system
“include[s] advertising servers 102, which may provide and manage
advertising services for mobile devices and users within a given geographic
region 104” (id. 117). More particularly, Bishop discloses that its
“advertising server 102 may enable any number of advertisers or prospective
advertisers ... to bid for and win the right to present advertisements to any
mobile users 110 and corresponding mobile devices 112 entering” a given
geographic region 104 (id. 118). In one example, Bishop discloses that
“[w]hen the user 110 provides the item keyword 124 (e.g., ‘pizza’) to the
mobile device 112, the mobile device 112 may present the advertising
materials 114a provided by the pizzeria” (id. 123).
Jablokov is directed to the “[tjargeted delivery of contextually
relevant ad impressions to a mobile device . . . delivered within text
messages” (Jablokov, Abstract). More particularly, Jablokov discloses that
“[t]he ad impression further may indicate time-of-day, week, month,
weather, seasonality, geographical proximity, and/or location of the mobile
device, and the delivery and/ or presentation may be based, at least in part,
13
Appeal 2014-003721
Application 13/107,352
on awareness of time-of-day, week, month, weather, seasonality,
geographical proximity, and/or location of the mobile device” {id. 134; see
also id. ^Hf 82, 85, 103, 104, 243).
We also are not persuaded by Appellants’ argument that “it would not
have been obvious to combine the teachings of Bishop and Jablokov to
result in the presently claimed invention without the use of undue hindsight”
(Br. 31). Instead, we find the Examiner provided articulated reasoning with
some rational underpinning to support the obviousness conclusion at page 14
of the Final Office Action. The Examiner’s rejection also appears clearly
based on the disclosures of the Bishop and Jablokov, and not on the
disclosure of the present application. Here, the Examiner reasons that “[o]ne
would have been motivated to do so because ‘[s]uch additional
customization of ad delivery and presentation provides advertisers additional
advantages in being able to target campaigns to users when they are in the
most receptive state to targeted advertisements’” (Final Act. 14 (citing
Jablokov 1244)). And, absent specific, technical arguments as to why the
motivation is insufficient or why the proposed combination is more than the
simple substitution of one known element for another, we find Appellants’
hindsight argument unpersuasive.
In view of the foregoing, we sustain the Examiner’s rejection of
independent claims 1 and 19 under 35 U.S.C. § 103(a) as unpatentable over
Bishop and Jablokov. We also will sustain the Examiner’s rejection of
claims 2-4, 6, 17, 21, 23, 25—27, and 30 under 35 U.S.C. § 103(a) as
unpatentable over Bishop and Jablokov, which are not meaningfully argued
separately.
14
Appeal 2014-003721
Application 13/107,352
Dependent claims 5 and 28
Appellants argue that the combination of Bishop and Jablokov fails to
disclose or suggest “prioritizing said message for delivery based on said
vendor’s proximity to the mobile device and said advertiser defined
geolocation territory rights and not based on the highest bid for delivering
the message,” as recited by dependent claim 5, and similarly recited by
dependent claim 28 (Br. 31—32).
The Examiner relies on paragraphs 102—104 of Bishop as disclosing
the subject matter of dependent claims 5 and 28 (Final Act. 15, 16).
However, we agree with Appellants that paragraphs 102—104 “merely
describe[e] user preferences” (see Br. 32), and as such, fail to disclose or
suggest the argued feature.
In response to Appellants’ argument, the Examiner also relies on
paragraphs 18, 23, 31, and 107 in the Answer as disclosing the subject
matter of claims 5 and 28 (Ans. 45—46, 48-49). However, after reviewing
the newly cited portions of Bishop, we do not see, and the Examiner does
not adequately explain, where Bishop discloses “prioritizing said message
for delivery based,” on the requirements of claim 5 and 28.
In view of the foregoing, we do not sustain the Examiner’s rejection
of claims 5 and 28 under 35 U.S.C. § 103(a) unpatentable over Bishop and
Jablokov.
Dependent claim 24
Appellants argue that the combination of Bishop and Jablokov fails to
disclose or suggest “wherein said message selection is also based on an
individual’s activity-related information,” as recited by claim 24 (Br. 32—
15
Appeal 2014-003721
Application 13/107,352
33). However, we agree with, and adopt the Examiner’s findings and
rationale as set forth at pages 50-51 of the Answer.
In view of the foregoing, we sustain the Examiner’s rejection of
claim 24 under 35 U.S.C. § 103(a) unpatentable over Bishop and Jablokov.
Dependent claim 29
Appellants argue that the combination of Bishop and Jablokov fails to
disclose or suggest “wherein said message selection is also based on an
individual’s activity-related information,” as recited by claim 24 (Br. 32—
33). However, we agree with the Examiner that Bishop discloses that
“advertisers can bid on a time slot during which the advertisement (or
message) will be sent, thereby making the delivered message ‘time-
sensitive,’ as claimed” (Ans. 52 (citing Bishop 131)). In this regard, Bishop
discloses using additional parameters which “may include discrete time slots
on which advertisers may bid, such that when a given mobile user activates
the keyword during the time slot while within the given area, the mobile user
would receive advertisements from the advertisers” (Bishop 131).
In view of the foregoing, we sustain the Examiner’s rejection of claim
29 under 35 U.S.C. § 103(a) unpatentable over Bishop and Jablokov.
Independent claims 1 and 19, and dependent claims 2—6, 17, 19—22, 24, 25,
and 27—30 rejected as obvious over Bishop and Gelfand.
We are not persuaded by Appellants’ argument that the Examiner
erred in rejecting independent claims 1 and 19 under 35 U.S.C. § 103(a)
because the combination of Bishop and Gelfand does not disclose or suggest
“delivering messages based on (1) location-based, advertiser defined
geolocation territory rights and also (2) based on said mobile device’s
16
Appeal 2014-003721
Application 13/107,352
location and (3) weather conditions relating to said mobile device’s
location,” as required by independent claims 1 and 19 (see Br. 34—35).
Instead, we agree with, and adopt the Examiner’s findings and rationale as
set forth at pages 52—54 of the Answer in response to Appellants’ arguments
{see Br. 36—37).
In view of the foregoing, we sustain the Examiner’s rejection of
independent claims 1 and 19 under 35 U.S.C. § 103(a) as unpatentable over
Bishop and Jablokov. We also will sustain the Examiner’s rejection of
claims 2—6, 17, 19-22, 24, 25, and 27—30 under 35 U.S.C. § 103(a) as
unpatentable over Bishop and Jablokov, which are not meaningfully argued
separately.
17
Appeal 2014-003721
Application 13/107,352
DECISION
We do not sustain the Examiner’s rejection of claims 1—6, 17, and 19-
30 under 35 U.S.C. § 101.
We sustain the Examiner’s rejection of claims 1—6, 17, and 19-30
under 35 USC § 112, second paragraph.
We do not sustain the Examiner’s rejection of claims 17 and 30 under
35 USC § 112, fourth paragraph.
We sustain the Examiner’s rejection of claims 1—3, 17, 19-22, 24, 25,
29, and 30 under 35 U.S.C. § 102(b) as anticipated by Gelfand.
We sustain the Examiner’s rejection of claims 1—4, 6, 17, 19, 21, and
23—27, 29, and 30, but do not sustain the Examiner’s rejection of claims 5
and 28 under 35 U.S.C. § 103(a) as unpatentable over Bishop and Jablokov.
We sustain the Examiner’s rejection of claims 1—6, 17, 19-22, 24, 25,
and 27—30 under 35 U.S.C. § 103(a) as unpatentable over Bishop and
Gelfand.
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
18