Ex Parte Wang et al

Patent Trial and Appeal Board

Nov 16, 2016

12984690 (P.T.A.B. Nov. 16, 2016)

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.
12/984,690 01/05/2011 Qiong Wang 67108-390FUS1; 807847 2806
46368 7590 11/18/2016
CARLSON, GASKEY & OLDS, P.C./Alcatel-Lucent
400 W MAPLE RD
SUITE 350
BIRMINGHAM, MI 48009
EXAMINER
CHEIN, ALLEN C
ART UNIT PAPER NUMBER
3627
NOTIFICATION DATE DELIVERY MODE
11/18/2016 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):
ptodocket @ cgolaw. com
cgolaw@yahoo.com
ipsnarocp @ nokia. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte QIONG WANG and RAMESH NAGARAJAN
Appeal 2014—004930
Application 12/984,690
Technology Center 3600
Before ANTON W. FETTING, BRADLEY B. BAYAT, and
ROBERT J. SILVERMAN, Administrative Patent Judges.
FETTING, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE1
Qiong Wang and Ramesh Nagarajan (Appellants) seek review under
35 U.S.C. § 134 of a Final Rejection of claims 9, 10, 19, and 20 only.2
Claims 1—20 are pending and finally rejected in the application on appeal.
We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b).
1 Our Decision will make reference to the Appellants’ Appeal Brief (“App.
Br.,” filed October 3, 2013) and Reply Brief (“Reply Br.,” filed February 28,
2014), and the Examiner’s Answer (“Ans.,” mailed December 31, 2013),
and Final Office Action (“Final Act.,” mailed June 3, 2013).
2 App. Br. 1.
Appeal 2014-004930
Application 12/984,690
The Appellants invented a way of allocating revenue among providers
of products that are offered together for purchase as part of a unit. Spec,
para. 5.
An understanding of the invention can be derived from a reading of
exemplary claims 1, 9, and 10, which are reproduced below (bracketed
matter and some paragraphing added).
1. A device for allocating revenue among providers of offerings
that are each offered as part of a unit, the device comprising:
[1] a processor that is configured to
automatically determine a number of unit or offering
purchases,
automatically issue a number of virtual shares to each of
the providers
based on
the determined number of unit or offering
purchases
and
a predetermined allocation of a number of
virtual shares for each provider,
respectively, corresponding to each purchase
of a unit or offering,
and
determine a value of each issued virtual share
using at least one selected revenue sharing rule
according to a determined schedule;
and
[2] a virtual share redemption module that is configured to
facilitate redemption of issued virtual shares at the determined
value.
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Appeal 2014-004930
Application 12/984,690
9. The device of claim 1, wherein the revenue sharing rule
values each virtual share
based on recovering provider cost
followed by proportionally distributing revenue among
the issued virtual shares.
10. The device of claim 1, wherein the revenue sharing rule
allocates revenue to a first type of virtual shares on a
priority basis
and then
allocates revenue to a second, different type of virtual
share proportionally based on any remainder after the
revenue is allocated to the first type of virtual shares.
The Examiner relies upon the following prior art:
Reuss US 2007/0265950
Wilson US 2008/0270286
Suzuki US 2012/0130850
A1 Nov. 15,2007
A1 Oct. 30, 2008
A1 May 24, 2012
Claims 1 and 4—20 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Suzuki and Wilson.
Claims 2, 3, 12, and 13 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Suzuki, Wilson, and Reuss.
ISSUES
The issues of obviousness turn primarily on whether the art describes
the rules recited in the claims.
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Appeal 2014-004930
Application 12/984,690
FACTS PERTINENT TO THE ISSUES
The following enumerated Findings of Fact (FF) are believed to be
supported by a preponderance of the evidence.
Facts Related to the Prior Art
Suzuki
01. Suzuki is directed to techniques to provide revenue sharing from
products sold in an online storefront. Some embodiments are
particularly directed to techniques to providing revenue sharing
with channel partners of the online storefront host. Suzuki para. 4.
02.Suzuki describes techniques to provide revenue sharing from
products sold in an online storefront. Suzuki describes techniques
to providing revenue sharing with channel partners of the online
storefront host. A technique may include bundling products into
packages for download. Payment for a downloaded package may
be shared among the online storefront, and the developers of the
products in the package. The percentage of the shared portion
received by a developer may depend on the quality or other
ranking metric of the product, relative to the other products in the
package. The percentage of the shared portion may be determined
dynamically as the ranking metric values for the products change.
Suzuki para. 4.
03.Suzuki describes grouping two or more products together for sale,
subscription, or licensing and receiving a payment for a package.
Suzuki may share a first portion of the payment with the online
storefront host. For example, the entity that provides the online
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Appeal 2014-004930
Application 12/984,690
storefront may receive a flat fee or a percentage of the package
price. Suzuki may share a second portion of the payment with a
third-party entity. For example, each of the developers having
products in the purchased package may receive a percentage of the
payment. Suzuki paras. 30-33.
Wilson
04. Wilson is directed to trading in investments in the products or
product concepts and sharing in revenues from a class of products
or product concepts that traditionally have not been offered and
traded on an open trading exchange platform in two locations.
Wilson also can bundle the sale of a product and the investment in
the product. As such, a purchaser can share future revenues of the
product without having to invest in the product separately.
Wilson para. 8.
05. A product owner offers the product or product concept and creates
a revenue sharing agreement. The revenue sharing agreement can
document how shares are provided to a user that purchases the
product or shares in the product or product concept. The shares
give the user an interest in the product or product concept, such
that the user can receive dividends from future sales or can trade
the shares for a monetary value. When buying the product, the
user, in embodiments, is automatically provided the shares
according to the revenue sharing agreement. Wilson para. 22.
06. A user share agreement engine, in embodiments, accepts a
revenue share agreement from the product owner. The user share
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Appeal 2014-004930
Application 12/984,690
agreement engine provides information requests to the user
interface to solicit the required information to form the revenue
share agreement. The user share agreement engine may receive
the information and form the revenue share agreement and store
the agreement in the product and share database. The information
received from the product owner sets the terms and conditions of
the revenue share agreement. Wilson para. 45.
ANALYSIS
As to claims 10 and 20, reciting “the revenue sharing rule allocates
revenue to a first type of virtual shares on a priority basis and then allocates
revenue to a second, different type of virtual share proportionally based on
any remainder after the revenue is allocated to the first type of virtual
shares,” we are not persuaded by Appellants’ argument that:
The Suzuki reference only distributes revenue directly to
an online store provider and providers of products that are sold
together in bundled packages through the online storefront. The
revenue is distributed among them on a percentage basis
depending on the product rank or tier membership as described
above. The Suzuki reference does not have two different types of
shares. Instead, all providers have a percentage of revenue
although different providers get different percentages of the
distributed revenue. Different percentage amounts are still all
percentages and, therefore, all the same "type" (just in differing
amounts of that "type"). It is therefore impossible for the
Examiner to find a first type of virtual share and a second,
different type of virtual share within the Suzuki reference. It is
also impossible for the Examiner to find allocating revenue on a
priority basis to one type of share and then allocating revenue on
a proportional basis to a second type of share using any
remainder after the revenue was already allocated to the first type
of virtual shares on the priority basis within the Suzuki reference.
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Application 12/984,690
App. Br. 6 (emphasis omitted). As the Examiner finds, Suzuki describes a
revenue sharing rule in which a merchant receives an amount first, implying
a higher priority than what happens next. Then the remaining revenue is
shared proportionately. Appellants’ thrust is that even where different
priorities and rules are applied, so long as the rules rely on percentages, they
are of the same type. By that logic, everything ever created is of the same
type because everything is composed of atoms. The claim distinguishes type
based on the rule and priority, not based on a mathematical calculation
operator. We agree with the Examiner that Suzuki describes the recited
types.
As to claims 9 and 19, however, reciting “the revenue sharing rule
values each virtual share based on recovering provider cost followed by
proportionally distributing revenue among the issued virtual shares,” we are
persuaded by Appellants’ argument that Suzuki fails to describe a cost
recovery rule. App. Br. 3. The Examiner finds that Suzuki describes a first
and second portion. Final Act. 6; Ans. 2—3. The Examiner says that he
believes the first portion corresponds to recovering cost. Ans. 3. At the end
of this statement is what appears to be a footnote reference “3.” Footnote 3,
however, is not printed in the Answer as of record. There is nothing in
Suzuki to suggest a rule based on cost recovery.
CONCLUSIONS OF LAW
The rejection of claims 1, 4—8, 10, 11, 14—18, and 20 under 35 U.S.C.
§ 103(a) as unpatentable over Suzuki and Wilson is proper.
The rejection of claims 9 and 19 under 35 U.S.C. § 103(a) as
unpatentable over Suzuki and Wilson is improper.
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Application 12/984,690
The rejection of claims 2, 3, 12, and 13 under 35 U.S.C. § 103(a) as
unpatentable over Suzuki, Wilson, and Reuss is proper.
DECISION
The rejection of claims 1—8, 10-18, and 20 is affirmed.
The rejection of claims 9 and 19 is reversed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED-IN-PART
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