LUTNICK, HOWARD W.Download PDFPatent Trials and Appeals BoardAug 2, 201911953324 - (D) (P.T.A.B. Aug. 2, 2019) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 11/953,324 12/10/2007 HOWARD W. LUTNICK 07-2187 1964 63710 7590 08/02/2019 INNOVATION DIVISION CANTOR FITZGERALD, L.P. 110 EAST 59TH STREET (6TH FLOOR) NEW YORK, NY 10022 EXAMINER WEATHERFORD, SYVILA ART UNIT PAPER NUMBER 3715 NOTIFICATION DATE DELIVERY MODE 08/02/2019 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): lkorovich@cantor.com patentdocketing@cantor.com phowe@cantor.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte HOWARD W. LUTNICK Appeal 2019-001649 Application 11/953,324 Technology Center 3700 Before BRETT C. MARTIN, WILLIAM A. CAPP, AND LISA M. GUIJT, Administrative Patent Judges. MARTIN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant,1 CFPH, LLC, appeals from the Examiner’s decision to reject claims 1, 2, 4–8, 28, 30, 31, 40–46, and 48–54. Claims 3, 9–27, 29, 32–39, and 47 were canceled during prosecution. App. Br. 21–25. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word “Appellant” to refer to “Applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as CFPH, LLC. Appeal Br. 3. Appeal 2019-001649 Application 11/953,324 2 CLAIMED SUBJECT MATTER The claims are directed to a products and processes for a point exchange. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A method comprising: receiving from each handheld device of a first group of handheld devices, by at least one processor, a wager on an event, in which the wager received from each handheld device includes a respective plurality of points of a first type, in which each handheld device is remote to the at least one processor, and in which each handheld device and the at least one processor are in electronic communication over a network; based at least in part on an outcome of the event, distributing to a first handheld device of the first group of handheld devices, by the at least one processor, an amount of the first type of points, in which the distributing comprises updating a database entry for the first handheld device to reflect an increase of the first type of points by the amount of the first type of points that are distributed; receiving, by the at least one processor, from the first handheld device of the first group of handheld devices a request to transfer the points of the first type from the first handheld device of the first group of handheld devices to a first handheld device of a second group of handheld devices in which members of the second group use a second type of points different from the first type of points for wagering; in response to receiving the request to transfer the points of the first type from the first handheld device of the first group of handheld devices to a first handheld device of the second group of handheld devices, querying, by the at least one processor, a second handheld device of the second group of handheld devices as to whether the second handheld device is configured to permit the first handheld device of the first group of handheld devices to transfer points of the first type to the first handheld device of the second group of handheld devices; responsive to querying the second handheld device of the second group of handheld devices, receiving, by the at least one Appeal 2019-001649 Application 11/953,324 3 processor, from the second handheld device of the second group of handheld devices a verification that the request to transfer the points of the first type from the first handheld device of the first group of handheld devices to the first handheld device of the second group of handheld devices is permitted; and based at least in part on receiving the verification from the second handheld device of the second group of handheld devices that the request to transfer the points of the first type from the first handheld device of the first group of handheld devices to the first handheld device of a second group of handheld devices is permitted: converting, by the at least one processor based on an exchange rate, an amount of the first type of points into an amount of the second type of points; and distributing, by the at least one processor, the amount of the second type of points to the first handheld device of the second group of handheld devices, in which the distributing comprises updating the database entry for the first handheld device of the first group of handheld devices to reflect a decrease of the first type of points by the amount of the first type of points that are converted, and updating a database entry for the first handheld device of the second group of handheld devices to reflect an increase by the amount of the second type of points that are converted. REFERENCES The prior art relied upon by the Examiner is: Anuszewski Davis US 2008/0059367 A1 US 2008/0108429 A1 Mar. 6, 2008 May 8, 2008 REJECTION Claims 1, 2, 4–8, 28, 30, 31, 40–46, and 48–54 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Davis and Anuszewski. Ans. 3. Appeal 2019-001649 Application 11/953,324 4 OPINION Appellant presents two related arguments regarding the Examiner’s combination. Appellant first argues that the Examiner has misconstrued the claim language in an unreasonable manner by equating the money of Anuszewksi with the points disclosed in the instant Specification. App. Br. 11. Second, Appellant argues that Anuszewski is non-analogous art for essentially the same reason, namely that money and points are two different concepts and so Anuszewski is too far afield from the claimed invention. App. Br. 13. We disagree. Appellant’s arguments essentially boil down to the assertion that the exchange disclosed in Anuszewski is inapplicable to the present invention because Anuszewski deals with money exchanges and the application deals with in-game point exchanges. Appellant argues that the Examiner has misinterpreted the Specification in equating money to points in order to bring Anuszewski within the scope of Appellant’s claims. App. Br. 12. According to Appellant, “the specification does not equate the points to money; rather, the points are indicative of some external event.” Id. Regardless of this assertion, Appellant provides no response to the Examiner’s explanation of the relevance of Anuszewski when read in light of paragraph 93 of Appellant’s Specification. Anuszewski deals with a proposed currency exchange between two individuals/entities that are operating under different currency systems such that a delay in processing of any particular transaction may have a negative impact on one side or the other if the exchange rate were to dramatically shift in favor of one party or the other between the time of the transaction and the final processing of the transaction. As such, Anuszewski teaches that it may be desirable to seek permission from parties involved to proceed with the transaction under Appeal 2019-001649 Application 11/953,324 5 certain parameters, either agreeing to the prevailing exchange rate upon final processing or possibly setting an exchange rate at the time of the agreement such that regardless of prevailing rate later on, the parties know at the time of agreement what exchange rate will be used. Although we agree that monetary exchanges are described in Appellant’s Specification as being separate, out-of-game transactions that are different from in-game point exchanges, we cannot ignore the similarity between the portion of the Specification noted by the Examiner and the system of Anuszewski. Appellant’s Specification, ¶ 93, states: In some embodiments, a point value exchange may be established through which users in various groups and of various systems may trade amongst each other at an exchange rate agreed upon individually by the users. A user may submit information identifying current available points and current group/system to which those points belong, and a target system/group and possibly a target exchange rate. Such information may be presented to one or more other users, such as through a point value exchange interface that lists available trades, direct solicitation (e.g., emails, etc. Other users who have points on that target system/group may respond to such a request by accept a trade. Such other users may accept an exchange rate and/or other terms provided by the originator of the listing, and/or suggest different terms and enter a negotiation. If the users agree, a trade may be executed. Regardless of the specific currency involved, there is little doubt as to the applicability of Anuszewski given this disclosure. Both involve the exchange of some form of currency using an exchange rate and requiring permissions before the transaction is completed. Given this explanation by the Examiner, we do not agree that the Examiner is equating the out-of-game monetary transaction to points as asserted by the Examiner. Rather, the Examiner has adequately pointed out how both Anuszewski and Appellant’s Appeal 2019-001649 Application 11/953,324 6 Specification disclose a similar exchange of currency that involves an exchange rate along with permission to accept terms before completion. In this sense, it is perfectly reasonable for the Examiner to determine that points and money are both types of currency, with the other details of the transaction at issue being nearly identical. As such, we do not agree that the Examiner has unreasonably interpreted the claim language to encompass the transaction described in Anuszewski. As to Appellant’s non-analogous art argument, this argument also rests on the same premise that money and points are too different to allow the Examiner to look to Anuszewski. As noted above, however, paragraph 93 of Appellant’s Specification makes clear that Anuszewski is properly related to the claims at issue. Regarding the remaining claims, Appellant provides no separate arguments and relies on the arguments made with regard to claim 1, which we have already found unpersuasive. See App. Br. 17. As such, we affirm the Examiner’s rejection of all claims. DECISION The Examiner’s rejection is AFFIRMED. FINALITY AND RESPONSE 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)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation