Michelle Fisher

Patent Trials and Appeals BoardMar 29, 2021

2019005639 (P.T.A.B. Mar. 29, 2021)

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. 14/576,454 12/19/2014 Michelle Fisher BLZMP0011C1 5198 12120 7590 03/29/2021 Michelle Fisher 2930 Domingo Ave Suite 123 Berkeley, CA 94705 EXAMINER KELLEY, STEVEN SHAUN ART UNIT PAPER NUMBER 2646 NOTIFICATION DATE DELIVERY MODE 03/29/2021 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): mfisher@blazemobile.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MICHELLE FISHER Appeal 2019-005639 Application 14/576,454 Technology Center 2600 Before MARC S. HOFF, STEVEN M. AMUNDSON, and MICHAEL T. CYGAN, Administrative Patent Judges. CYGAN, Administrative Patent Judge. DECISION ON REQUEST FOR REHEARING STATEMENT OF THE CASE Appellant filed a Request for Rehearing under 37 C.F.R. § 41.52 on March 26, 2020 (hereinafter “Request”). In the Request, Appellant requests that we reconsider our Decision on Appeal of January 31, 2020 (hereinafter “Decision”) affirming the Examiner’s obviousness rejection under 35 U.S.C. § 103 of claims 1–7, 9–16, and 18–32. We reconsidered our Decision in light of Appellants’ Request for Rehearing. For the reasons explained below, Appellant’s arguments do not persuade us that we misapprehended or overlooked any point of fact or law in rendering our Decision. Hence, we deny Appellant’s request to modify our Decision. Appeal 2019-005639 Application 14/576,454 2 CLAIMED SUBJECT MATTER The claimed invention generally relates to conducting a near field communication (“NFC”) transaction using a server. Appeal Br. 2. Appellant states that certain prior implementations are typically tied to a specific platform, for example, the use of NFC codes are only usable with NFC readers. Spec. ¶ 2. Further, conventional wireless mobile devices generally have a very limited ability to be used in transactions. Id. Independent claim 1 is illustrative: 1. A method for conducting a Near Field Communication (NFC) transaction, the method comprising: maintaining, at a server, a payment method; receiving at the server, an identification code associated with a user from an NFC terminal over a second communication channel that is different than a first communication channel, wherein the identification code associated with the user is received from a secure element memory via a secure element transceiver using a secure element application in response to a near field communication inductive signal by the NFC terminal when the secure element is in close proximity to the NFC terminal which causes a secure element processor to execute the secure element application configured to use an NFC protocol and transmit the identification code associated with the user to the NFC terminal memory over the first communication channel configured to use the NFC protocol, wherein the identification code associated with the user is maintained in the secure element memory, the secure element memory, the secure element processor, and the secure element transceiver are included in a secure element that is permanently embedded within the body of a mobile device, the mobile device comprising a mobile device processor, a mobile device memory that stores a non-browser based application with a graphical user interface, and a mobile device wireless transceiver configured to use at least one of GSM, CDMA, or WIFI; Appeal 2019-005639 Application 14/576,454 3 processing the NFC transaction at the server using the payment method that corresponds to the identification code of the user from the NFC termina[]l; and after the NFC transaction has been processed by the server, sending from the server a digital artifact to the non- browser based application running on the mobile device. ANALYSIS A rehearing request “must state with particularity the points believed to have been misapprehended or overlooked by the Board.” 37 C.F.R. § 41.52(a)(1) (2019); see Ex parte Quist, 95 USPQ2d 1140, 1141 (BPAI 2010) (precedential). An appellant should not use a rehearing request as a vehicle to express disagreement with a Board decision or rehash arguments previously presented. See 37 C.F.R. § 41.52(a)(1). An appellant dissatisfied with a Board decision should seek judicial review, not file a rehearing request to reargue already decided issues. See 35 U.S.C. §§ 141, 145. Here, Appellant argues that we misapprehended or overlooked the following points of fact or law in rendering our Decision: (1) The Board Decision has overlooked that the instant application is related to U.S. Application No. 12/592,581, in which the Board reversed the Examiner’s rejections. (2) The Board Decision has overlooked MPEP 2111; i.e., that claims must be given their broadest reasonable interpretation consistent with the specification. (3) The Board Decision has misapprehended the claims by interpreting that Rosenberg’s identification code includes the payment method. (4) The Board Decision errs in stating, “Appellant does not explain how the recitations of the dependent claims Appeal 2019-005639 Application 14/576,454 4 support Appellant’s assertions of error in the Examiner’s rejection.” (5) The Board Decision errs in failing to be persuaded by Appellant’s argument that Yeager fails to teach or suggest the claimed “maintaining, at a server, a payment method.” (6) The Board Decision overlooks Appellant’s reasoning, aside from a lack of teaching “payment method,” that explains why Yeager does not teach the claimed “receiving” or “processing” limitations. (7) The Board Decision’s statement that alleged differences in the processing of the claimed transaction, which are not claimed, are unpersuasive as not being commensurate with the scope of the claim overlooks case law. (8) The Board Decision has overlooked support in the Specification for Appellant’s argument that SMS is not the same as a non-browser based application with a graphical user interface. Req. Reh’g (emphases omitted). Below, we address each point in turn. OPINION 1. The ‘581 Appeal Appellant argues that the Board, in the 12/592,581 Application (the “‘581 application”), stated “the Examiner’s use of the credit card as both the identification code and the payment method is inconsistent with the Specification as the identification code and credit card information are described as separate elements.” Req. 2 (emphasis omitted). Appellant further quotes 37 C.F.R. § 41.37(c)(1)(iv) as stating “[t]his sentence is also limited to the present appeal and is not intended to extend the Boards refusal to consider other arguments or authorities to subsequent appeals in the same Appeal 2019-005639 Application 14/576,454 5 application or to appeals in other applications.” Id. Appellant requests the Board reverse the anticipation rejection in claims 5 and 14 of the instant case for the same reason as argued in the ‘581 application. Id. We are not persuaded that we have overlooked Appellant’s reference to the Board’s Rehearing Decision in the ‘581 application. Claims must be interpreted in light of the specification, that is, the specification to which the claims are attached. Here, Appellant asks that we interpret the claims of the instant ‘454 application in light of the ‘581 Specification. Appellant has not asserted that the specifications of the ‘454 and ‘581 applications are identical, and the record indicates that they are not. For example, the claim interpretation in the ‘581 Board Rehearing Decision relies on paragraph 40 in the ‘581 Specification for a description of a management server and the ability to scale. ‘581 Rehearing Decision 15. However, paragraph 40 in the instant ‘454 Specification instead discusses how a loading station can load funds through a specifically described code. Spec. ¶ 40. Instead, the ‘454 and ‘581 applications are related only indirectly, through a common claim of benefit to U.S. application 11/467,441. Compare U.S. Patent Number 10,902,399 B2,1 code 63 (indicating that the ‘581 application that matured into the ‘399 Patent is a continuation of U.S. application 11/467,441), with Spec. ¶ 1 (indicating that the ‘454 application is a continuation-in-part of U.S. application 11/467,441). Because the instant application is a continuation-in-part of the earlier application, it may 1 The Applicant/Inventor for the 10,902,399 B2 Patent is Michelle Fisher, the same as for the instant ‘454 application. Appeal 2019-005639 Application 14/576,454 6 contain additional material, and thus an interpretation made on the ‘581 Specification is not necessarily the same interpretation that would be reached on the instant ‘454 Specification. Furthermore, the ‘581 Board Rehearing Decision contained at least one additional evidence-backed argument as to the meaning of “identification code” and “payment method” that was not raised here. The ‘581 Rehearing Decision pointed to argument by Appellant that the ‘581 application contained separate embodiments, distinguishing the claimed embodiment having an identification code stored in the secure element from one having the payment method stored in the secure element. ‘581 Rehearing Decision 7–8. Appellant argued that the difference between those embodiments, as reflected in specific language in the ‘581 Specification, supported Appellant’s interpretation. Id. at 7–8, 12. Appellant has made no such argument, or pointed to a distinguishing embodiment in the ‘454 Specification, during the course of the instant appeal. Additionally, we have reviewed the language of 37 C.F.R. § 41.37, and determined that it lacks the language ascribed to it by Appellant. Nor does Appellant explain the perceived import of that proffered language so as to explain how that language would support the arguments made. We note that § 41.37(c)(1)(iv) contains similar language, “any arguments or authorities not included in the appeal brief will be refused consideration by the Board for the purposes of the present appeal.” 37 C.F.R. § 41.37(c)(1)(iv) (2013). However, Appellant has not explained how that language was overlooked or misunderstood in our Decision. Appeal 2019-005639 Application 14/576,454 7 For the reasons expressed above, we are not persuaded that we overlooked any point of fact or law pertaining to the ‘581 application and Board Rehearing Decision therein. 2. Broadest reasonable interpretation of “identification code” consistent with the Specification Appellant argues that Rosenberg does not teach the claimed “identification code” as properly construed in light of the Specification, as set forth in MPEP § 2111. Req. 3. Particularly, Appellant argues that the Examiner’s finding that “the credit card or account number [of Rosenberg] is an identifier transmitted to the user’s financial server” is not consistent with the broadest reasonable interpretation of “identification code” in light of the Specification. Id. Appellant cites various authorities for the principle that claim terms must be given their broadest reasonable interpretation in light of the specification. Id. at 3–6. Appellant argues that the “plain meaning of Applicant’s use of ‘identification code associated with the user’ corresponds to a payment method maintained at the server and differs significantly from the credit card/bank account number stored in the secure element used in Rosenberg, Nystrom, and Yeager.” Id. at 5 (emphasis omitted). Appellant argues that the Examiner errs in interpreting the “identification card associated with the user” as a generic germ that renders the term indistinguishable from “payment method,” which is “used in the Appellant’s specification to denote a credit card, debit card, or cash card that is stored at the server for processing a payment corresponding to the identification code associated with the user.” Id. at 4 (emphasis omitted). Appellant cites to Appeal 2019-005639 Application 14/576,454 8 paragraphs 25 and 28 of the Specification, as well as alleged paragraphs 113 and 116 of the Specification. Id. at 6–7. The term identification code appears in claim 1 in the following context: receiving at the server, an identification code associated with a user from an NFC terminal over a second communication channel that is different than a first communication channel claim element . . . wherein the identification code associated with the user is maintained in the secure element memory . . . that is permanently embedded within the body of a mobile device . . . [and] processing the NFC transaction at the server using the payment method that corresponds to the identification code of the user from the NFC terminal. Appellant cites to paragraph 25 of the Specification, emphasizing the description that “[t]he transaction request signals and the transaction response signals associated with the transaction can include an identification code associated with the user.” Req. 7. However, the record reflects that a credit card number is an identification code associated with the user, because Appellant argued that the payment card number of a credit card has “digits . . . used by the issuing organization to identify the cardholder.” Reply Br. 12. Thus, both the Specification and Appellant’s own arguments align with the Examiner’s interpretation of a credit card number as “an identification code associated with the user.” With respect to Appellant’s citations to paragraphs 113 and 116 of the Specification, we find no paragraphs having that numbering. The Appeal 2019-005639 Application 14/576,454 9 Specification ends with paragraph 63. Because paragraphs 113 and 116 do not exist, we are not persuaded that we have overlooked those paragraphs.2 With respect to Appellant’s citation to paragraph 28, the term “identification code” does not appear in that paragraph. Paragraph 28 describes the implementation of a “secure element” capable of “executing proximity services” so that the “smart chip will respond appropriately with the terminal.” Spec. ¶ 28. Appellant does not explain how this description is inconsistent with our interpretation of “identification code”; nor do we recognize that paragraph as being contrary to our interpretation of that term. Moreover, Appellant’s interpretations of both “payment method” and “identification code” appear consistent with the Examiner’s interpretation of those terms. Appellant interprets the “payment method” as the “credit card” stored at the server for processing a payment corresponding to the “identification code” associated with the user. Req. 4. The Examiner also interprets the “payment method” as a “credit card payment method” including the “expiration dates associated with the payment method.” Final Act. 8. The Examiner also finds the payment method to be stored at the server, and used for transaction processing in response to transmission of the ID code of an account. Id. at 3–4; Ans. 5 (finding that Rosenberg teaches “a credit card number (or account number) associated with the user is transmitted to user’s financial server to process the NFC transaction . . . 2 We note that the language allegedly in paragraphs 113 and 116 merely requires that the code be associated with the user, which we have addressed with respect to paragraph 25, determining that it does not show error in the Examiner’s rejection. Appeal 2019-005639 Application 14/576,454 10 Rosenberg does teach the feature of ‘processing the NFC transaction at the server using the payment method that corresponds to the identification code of the user from an NFC terminal’, as recited”). Consequently, we are not persuaded that we overlooked any point of fact or law raised by Appellant pertaining to the broadest reasonable interpretation of “identification code” in light of the Specification. 3. Rosenberg’s identification code Appellant argues that the Board’s assertion, “Appellant’s argument that Rosenberg describes the identification code as the mobile device information, while true, is not persuasive because the identification code is described as also including the payment method information,” in the Decision is a new claim interpretation of “identification code” that is not in accordance with the broadest reasonable interpretation consistent with the Specification. Req. 7. (citing Dec. 7). Appellant argues that Rosenberg teaches that the mobile communication device provides unique information of the smart link module, unique identification of the bank or credit card number, and unique identification of the mobile communication device. Id. at 8 (citing Rosenberg ¶ 52). Appellant argues that this description shows that Rosenberg’s identification of the mobile device is separate from the payment method, and therefore, the identification code cannot include the payment method as asserted by the Board. Id. at 9. Appellant here misconstrues our remarks in the Decision. Our statement in the Decision refers to the identification information stored on Rosenberg’s mobile communication device, not an interpretation of the Appeal 2019-005639 Application 14/576,454 11 claimed “identification code.” In responding to Appellant’s argument that Rosenberg’s identification code stored in the smartlink device “does not correspond to a payment method or to being used in the NFC payment transaction to process a payment using a payment method that corresponds to the identification code of a user,” we pointed out that Rosenberg’s smartlink information included payment method information, in the sense that Rosenberg’s smartlink module includes both device-related information (smartlink module identifier) and payment-method-related information (credit card number of the user). Decision 7. Thus, in our Decision we pointed out that Rosenberg stores both the unique identification code of the mobile device on that mobile device, but also the “credit card number of the user.” Id. Appellant apparently agrees with our assessment of Rosenberg, stating, “Rosenberg positively recites in paragraph 52 and shown below that the mobile communication device provides the bank the two pieces of information (i.e., the unique identification of the smart link module and bank or credit card number) in addition to the unique identification of the mobile communication device.” Req. 8. (emphasis omitted). Regarding the distinction between the payment method and the identification code, we distinguished the identification code, as the credit card number of the user stored on the mobile device, from the payment method, as the credit card stored separately on the server. Decision 7. Based on the entirety of the context in the Decision, we are not persuaded that we overlooked any matter of fact or law regarding Rosenberg’s teaching Appeal 2019-005639 Application 14/576,454 12 of separate payment method stored at server and identification code corresponding to the user stored at the mobile device. 4. Corroboration by the dependent claims Appellant disagrees with the statement in the Decision that Appellant argues that dependent claims “affirm the Applicant’s invention,” quoting limitations of various dependent claims. Appeal Br. 31. However, Appellant does not explain how the recitations of the dependent claims support Appellant’s assertions of error in the Examiner’s rejection. Consequently, we are not persuaded by Appellant’s argument. Req. 9 (quoting Dec. 17) (emphasis omitted). Appellant provides partial language from claims 21–26 and 28–31, and argues that these claims “clearly corroborate the Appellant’s argument that an identification code is not the same as the payment method and define claim terms by implication.” Id. Appellant has not provided an explanation of how the quoted text of the dependent claims supports Appellant’s argument. Appellant merely provides the same argument that was set forth in the Reply Brief. See Reply Br. 22 (providing a bare assertion that “[d]ependent claims affirm the Applicant’s invention as shown below,” followed by the same claim language provided in the Request). For the reasons expressed above, we are not persuaded that we overlooked any point of fact or law pertaining to the alleged support for Appellant’s arguments provided by dependent claims. Appeal 2019-005639 Application 14/576,454 13 5. Yeager’s identification code Appellant argues that the Decision errs in determining Yeager to teach “the identification code associated with the user is maintained in the secure element memory” because the identification code associated with the user is not the same as a credit card number. Req. 10. Appellant points to the Decision’s statement, “Yeager supports the Examiner’s finding that Yeager describes an account number stored on both server and host/adapter. Accordingly, we are not persuaded by Appellant’s argument that Yeager fails to teach or suggest the claimed ‘maintaining, at a server, a payment method.’” Id. at 9–10 (citing Decision 9). Appellant argues that “the plain meaning of the ‘identification code associated with the user’ corresponds to a payment method maintained at the server and differs significantly from the credit card number/bank account number stored in the secure element.” Id. at 10. Appellant here refers to a portion of the Decision addressing the separate identification code and payment method teachings of Yeager. With respect to the payment method being maintained at a server, we noted that Yeager’s server 320 contains “information about [the] user account.” Decision 9 (quoting Yeager ¶ 31). We further stated, “Yeager’s Figure 6 shows server 320 containing customer account information such as user name, password, public account key and secret key.” Id. at 9. With respect to the identification code located on the secure element memory and corresponding to the payment method, we stated, “the Examiner finds Yeager’s account number, transmitted in the NFC transaction, to correspond Appeal 2019-005639 Application 14/576,454 14 to a specific type [of] account that is stored on the server 320 of Yeager.” Id. at 8. With respect to Appellant’s argument that the plain meaning of the identification code associated with the user corresponds to a payment method maintained at the server, Appellant has not explained how the Examiner’s finding fails to meet that criteria. As detailed in the Decision, the Examiner finds the claimed “identification code” to be taught by Yeager’s user’s credit card number which corresponds to the credit card payment method maintained at the server. Decision 8–9. Appellant has not specifically identified any language in the Specification that would be contrary to that interpretation, as we have addressed above. See supra 4–10, 12–13. For the reasons expressed above, we are not persuaded that we overlooked any point of fact or law pertaining to Appellant’s arguments about Yeager’s teachings. 6. Yeager’s receiving and processing limitations3 Appellant alleges that the Board overlooked arguments traversing the Examiner’s finding that Yeager teaches or suggests this limitation. Req. 10. Appellant points to the Decision’s statement that Appellant’s only traversals of this finding involved an argument that no payment method was taught, 3 Our numbering diverges here from that used by Appellant in the Request, because Appellant numbers this point as “4)” and continues in increasing order, having two points “4” and “5.” We renumber the points for clarity in this Decision. Appeal 2019-005639 Application 14/576,454 15 and mere restatement of the claim limitations with a bare allegation that Yeager did not teach those limitations. Id. (citing Decision 14). Appellant disagrees. First, Appellant states that Appellant explained that “Yeager’s server does not receive and process an identification code because Yeager positively recites that the server receives bank or credit card information (Examiner alleges is ‘payment method’).” Id. (at citing Appeal Br. 13 and 32–34). Appellant characterizes this as an explanation that Yeager receives and processes credentials, and not an identification code. Id. at 11 (citing Reply Br. 17–24; Yeager ¶ 36, Figure 9). Appellant next alleges that the quoted section of Yeager does not teach the material of the independent claims, quoting the “receiving” limitation of claim 1. In our Decision we noted that the Appeal Brief did not provide arguments explaining why Yeager did not teach or suggest the “receiving” step, apart from arguments relating to the payment method. The Appeal Brief at section (2) recited “receiving at the server, an identification code associated with a user from an NFC terminal over a second communication channel that is different than a first communication channel,” and then stated, at section (2)(c), “Yeager Does not disclose.” Appeal Br. 25. In our Decision, we noted that Appellant’s newly presented arguments in the Reply Brief concerning the “receiving” limitation were refused considerations under 37 C.F.R. § 41.37(c)(1)(iv), because they were not presented in the Appeal Brief. Dec. 14. Appellant, in the Request, points to Appeal Brief 13; however, that is Appellant’s section 10(a)(1)(c), addressing Appellant’s arguments concerning “a payment method stored at the server claim element” (section Appeal 2019-005639 Application 14/576,454 16 10(a)(1)) as applied to Yeager (10(a)(1)(c)). Appeal Br. 9, 13. We considered these arguments in our discussion of the “payment method” at section 2(a)(ii) of the Decision. Decision 5, 8–9. Although Appellant further references pages 17–24 of the Reply Brief, Appellant does not explain how any such arguments regarding the “receiving” limitation were first presented in the Appeal Brief such that we erred in failing to consider those newly presented arguments pursuant to 37 C.F.R. § 41.37(c)(1)(iv). As to Yeager’s “processing” limitations, the Decision addressed Appellant’s arguments that Yeager does not teach the claimed “processing” limitation. Dec. 15–16. Further, although Appellant argues that we have overlooked Yeager’s teachings at Figure 9 and paragraph 36 (Req. 11–12), we addressed those sections of Yeager in the discussion of Yeager’s teaching of processing transactions in our Decision. Dec. 15–16. Additionally, Appellant provides extended quotations of arguments made a separate proceeding (the ‘581 appeal) and in a paper in this proceeding filed prior to the appeal. Req. 12–16. However, the bare quotations do not explain how we overlooked any matter of fact or law in the present appeal. Nor do they inherently address issues raised in Appellant’s briefing, such that they point to matters allegedly overlooked, because they contain only language from a different case and language from a pre-appeal paper. Although Appellant argues that statements made by the patentee during prosecution can limit the broadest reasonable interpretation of a claim term, Appellant does not point to any argument in the Appeal Brief based on such prosecution disclaimer, and therefore has not made a showing that we overlooked such an argument in our Decision. Appeal 2019-005639 Application 14/576,454 17 7. Unclaimed transaction processing features Appellant disagrees with the Decision’s determination that Appellant argues unclaimed differences in the way the NFC transaction is processed, such as alleged improvements to security, avoidance of updating, or cost of maintenance. Req. 16 (citing Dec. 17). Appellant cites to cases in support. Req. 16. However, no cited case supports the proposition that unclaimed differences can be relied upon for patentability. The first case addresses eligibility determinations under § 101, and not obviousness determinations under § 103. Uniloc USA, Inc. v. LG Elecs. USA, Inc., 953 F.3d 1303 (Fed. Cir. 2020) (determining that claims were directed to a patent-eligible improvement to computer functionality). Just as unclaimed differences do not support eligibility under § 101, unclaimed differences do not support patentability under § 103. See ChargePoint, Inc. v. SemaConnect, Inc., 920 F.3d 759, 769 (Fed. Cir. 2019); In re Self, 671 F.2d 1344, 1348, 1350 (CCPA 1982). The second case stands for the proposition that secondary considerations of nonobviousness can be presented in a specification. In re Soni, 54 F.3d 746, 750 (Fed. Cir. 1995). However, the court in Soni emphasized that a specification must contain “specific data” evidencing secondary considerations and not just “mere argument or conclusory statements.” Id. at 750. Appellant’s articulation of the alleged advantages in the Specification does not point to specific data; rather, it amounts to conclusory statements concerning possible advantages. The remaining cases cited by Appellant confirm that secondary considerations of nonobviousness Appeal 2019-005639 Application 14/576,454 18 may be shown by factual evidence, but no case stands supports Appellant’s position that an unclaimed alleged difference in the processing step, supported by mere conclusory statements, supports a determination of nonobviousness. Appellant further points to a discussion in the Appeal Brief of the “function, way, result” test discussed at MPEP 2183. Req. 17. However, MPEP 2183 discusses the “function, way, result” test as part of a determination that a prior-art element is an equivalent of a means- (or step-) plus function limitation under 35 U.S.C. § 112(f) or pre-AIA 35 U.S.C. § 112, 6th paragraph. MPEP 2183 (citing Kemco Sales, Inc. v. Control Papers Co., 208 F.3d 1352 (Fed. Cir. 2000) (“two structures may be ‘equivalent’ for purposes of section 112, paragraph 6 if they perform the identical function, in substantially the same way, with substantially the same result)). Neither the Examiner nor Appellant argue that any limitation in the claims invokes 112(f) or pre-AIA 112, 6th paragraph; accordingly, the function-way-result test as discussed in MPEP 2183 does not apply to the analysis of the claims. Consequently, we are not persuaded that we overlooked any point of fact or law pertaining to the alleged support for Appellant’s arguments provided by asserted but unclaimed alleged advantages that lack specific factual support. 8. SMS and non-browser based application with a graphical user interface Appellant argues the Board may have overlooked Applicant’s statement that Appeal 2019-005639 Application 14/576,454 19 Rosenberg positively recites sending a receipt (Examiner alleges is “Digital Artifact”) as SMS and that SMS is not the same as a non-browser based application with a graphical user interface so simple substitution of a non-browser based application with SMS does not apply. See page [sic] 36-38 of the Appeal Brief. Furthermore, the Board may have also overlooked that the Applicant provided support from the Specification describing the differences between SMS and a non-browser based application on page [sic] 33-34 of the Reply Brief. Additionally support can be found in paragraph 35 of the Specification which states, “SMS permits the mobile application 910 to send messages of a fixed size, for example, up to 160 characters, to and from the wireless mobile communication device 902.” Req. 19 (emphasis omitted). Appellant argues that the plain meaning of “non-browser based application with graphical user interface” requires, inter alia, a graphical user interface, not plain text as used in Rosenberg. Appellant acknowledges that the Examiner’s rejection relies upon Ohara for the graphical user interface, but that the combination of Ohara and Rosenberg “would [at] a minimum require Rosenberg to be redesigned to use a graphical user interface with icons and not just plain text.” Req. 19–20 (emphasis omitted). However, the test for obviousness is “not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference,” but instead “what the combined teachings of the references would have suggested to those of ordinary skill in the art.” Keller, 642 F.2d 413, 425 (CCPA 1981). Further, Appellant’s argument does not take into account the “inferences and creative steps that a person of ordinary skill in the art would employ.” KSR International Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). The person of ordinary skill is the person of Appeal 2019-005639 Application 14/576,454 20 ordinary skill in the art is “a person of ordinary creativity, not an automaton.” Id. at 421. Accordingly, we are not persuaded that one having ordinary skill in the art would not recognize the advantages found by the Examiner as a reason to combine the teachings of Ohara with either Rosenberg or Yeager. Appellant further argues that Rosenberg teaches an SMS, which is not a non-browser-based application. Appellant alleges that we have overlooked the Specification describing the differences between SMS and a non-browser based application; i.e., “SMS permits the mobile application 910 to send messages of a fixed size, for example, up to 160 characters, to and from the wireless mobile communication device 902.” Req. 19 (citing Spec. ¶ 35). However, the Specification further describes “a conventional application that implements SMS as a data transmission method.” Spec. ¶ 32. This appears to indicate that SMS is conventionally implemented by an application. Such description in the Specification is consistent with the Examiner’s finding that neither Rosenberg nor Yeager teaches invoking a browser to perform the transaction. Final Act. 4. Consequently, Appellant’s argument that Rosenberg and Yeager’s SMS is performed by a browser- based application is not persuasive. Appellant further advances an argument that the “non-browser based application” is not found in any of Rosenberg, Yeager, and Ohara, and therefore has been gleaned solely from Appellant’s Specification using improper hindsight reconstruction. Req. 20. Appellant does not point to the location of this argument in the Appeal Brief. Id. Rather, the Appeal Brief argues against the combination because it allegedly requires an Appeal 2019-005639 Application 14/576,454 21 “impermissible redesign,” not hindsight reconstruction, to achieve. Because Appellant has not shown this argument to have been presented to the Board in the briefs prior to the Decision, we are not persuaded that we overlooked any matter of fact or law in rendering our Decision. See 37 C.F.R. § 41.79(b)(1) (“Arguments not raised in the briefs before the Board . . . are not permitted in the request for rehearing”). CONCLUSION Based on the analysis above, we have granted Appellant’s request to the extent that we have reconsidered our Decision. For the reasons explained above, however, we decline to modify our Decision. Outcome of Decision on Rehearing: Claims Rejected 35 U.S.C. § Reference(s)/Basis Denied Granted 1–7, 9–16, 18–20, 23– 26, 28–31 103(a) Rosenberg or Yeager, Nystrom, Ohara 1–7, 9–16, 18–20, 23– 26, 28–31 21, 22 103(a) Rosenberg or Yeager, Nystrom, Ohara, Park 21, 22 27, 32 103(a) Rosenberg or Yeager, Nystrom, Ohara, Fernandes 27, 32 Overall Outcome 1–7, 9–16, 18–32 Appeal 2019-005639 Application 14/576,454 22 Final Outcome of Appeal After Rehearing: Claims Rejected 35 U.S.C. § References/Grounds Affirmed Reversed 20 101 Subject matter eligibility 20 1–7, 9– 16, 18– 20, 23– 26, 28–31 103(a) Rosenberg or Yeager Nystrom, Ohara 1–7, 9–16, 18–20, 23– 26, 28–31 21, 22 Rosenberg or Yeager Nystrom, Ohara, Park 21, 22 27, 32 103(a) Rosenberg or Yeager Nystrom, Ohara, Fernandes 27, 32 Overall Outcome 1–7, 9–16, 18–32 TIME PERIOD FOR 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)(1)(iv). See 37 C.F.R. § 41.50(f). REHEARING DENIED