Walmart Apollo, LLC

Patent Trials and Appeals BoardMar 29, 2021

2020006355 (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. 15/429,313 02/10/2017 Greg A. Bryan 8842-137317-US_620US02 6162 122573 7590 03/29/2021 Fitch, Even, Tabin & Flannery, LLP/Walmart Apollo 120 South LaSalle Street Suite 2100 Chicago, IL 60603-3406 EXAMINER DELIGI, VANESSA LIMA ART UNIT PAPER NUMBER 3627 MAIL DATE DELIVERY MODE 03/29/2021 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte GREG A. BRYAN, ERIC A. LETSON and JOHN P. THOMPSON ___________ Appeal 2020-006355 Application 15/429,313 Technology Center 3600 ____________ Before CARL W. WHITEHEAD JR., ADAM J. PYONIN, and MICHAEL J. ENGLE, Administrative Patent Judges. WHITEHEAD JR., Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE1 Appellant2 is appealing the final rejection of claims 1–14 under 35 U.S.C. § 134(a). Appeal Brief 3. Claim 1 is independent. We have jurisdiction under 35 U.S.C. § 6(b). 1 Rather than reiterate Appellant’s arguments and the Examiner’s determinations, we refer to the Appeal Brief (filed June 17, 2020), the Reply Brief (filed September 9, 2020), the Final Action (mailed January 23, 2020) and the Answer (mailed July 9, 2020), for the respective details. 2 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. Appeal 2020-006355 Application 15/429,313 2 We AFFIRM. Introduction According to Appellant, the claimed subject matter relates to “specifying the appearance of a properly-configured display that includes a plurality of discrete components and then forming at least one image that includes the appearance of the properly-configured display.” See Specification ¶ 13. Further: The image (or images) and corresponding information regarding the discrete loose components is provided to a retail shopping facility and used in conjunction with a mobile camera-equipped device to visually overlay the image over a view of an actual display to thereby facilitate comparing the actual display with the appearance of a properly-configured display. Specification ¶ 13. Representative Claim 1. A method comprising: specifying an appearance of a completed properly- configured display that includes a plurality of discrete loose components; forming a first image that presents the appearance of the completed properly-configured display; forming a second image that presents an appearance of a properly-configured though incomplete display; providing the first and second image and information regarding the discrete loose components to a retail shopping facility; when forming a physical display at the retail shopping facility that includes components corresponding to the plurality of discrete loose components: § 1.42(a). Appellant identifies Walmart, Inc. and Walmart Apollo, LLC, as the real parties in interest. Appeal Brief 3. Appeal 2020-006355 Application 15/429,313 3 using a mobile camera-equipped device to visually overlay the second image on an image of the physical display when the physical display is only partially completed to thereby facilitate comparing the only partially-completed physical display with the appearance of a properly-configured though incomplete display; using the mobile camera-equipped device to visually overlay the first image over an image of the physical display when the physical display is completed to thereby facilitate comparing the physical display with the appearance of a completed properly-configured display. References Name3 Reference Date Hicks US 2013/0051611 A1 February 28, 2013 Birch US 2014/0201040 A1 July 17, 2014 Yan US 2015/0088703 A1 March 26, 2015 Wu US 2015/0363758 A1 December 17, 2015 Rejections on Appeal Claims 1–10 stand rejected under 35 U.S.C. § 103 as being unpatentable over Yan and Birch. Final Action 2–8. Claims 11–13 stand rejected under 35 U.S.C. § 103 as being unpatentable over Yan, Birch and Wu. Final Action 8, 9. Claim 14 stands rejected under 35 U.S.C. § 103 as being unpatentable over Yan, Birch and Hicks. Final Action 9, 10. ANALYSIS Appellant contends, “Birch does not disclose forming or using an image of a properly configured though incomplete display.” Appeal Brief 7. Appellant further contends that according to claim 1, “an image of 3 All reference citations are to the first named inventor only. Appeal 2020-006355 Application 15/429,313 4 both a ‘completed properly-configured display’ and an image of a ‘properly- configured though incomplete display’” is provided. Appeal Brief 8. We find Appellant’s argument is not commensurate with the scope of claim 1 because claim 1 recite contingent limitations such as “when the physical display is only partially completed” and “when the physical display is completed.” See MPEP § 2111.04(II) (9th ed. Rev. 10.2019, June 2020) (“The broadest reasonable interpretation of a method (or process) claim having contingent limitations requires only those steps that must be performed and does not include steps that are not required to be performed because the condition(s) precedent are not met”). Appellant argues that “Birch offers no suggestion that either image [(Figures 6, 7)] is somehow incomplete in any way. Instead, the clear impression is that these images depict a complete display per requirements.” Appeal Brief 9. The Specification discloses: By one approach this activity comprises forming an image of a completed properly-configured display 100. If desired, however, additional images can be formed to capture or otherwise present the appearance of an incomplete properly- configured display 100. For example, when the display includes three vertically displaced shelves, a first such image can present the display with only the top shelf properly stocked with product, a second such image can present the display with only the top and middle shelf properly stocked with product, and the third such image can present the complete display (i.e., with all three shelves properly stocked with product). Specification ¶ 38 (emphasis added); see Answer 3. We find Appellant’s arguments are not persuasive of Examiner error. We note, that “[n]on-obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a Appeal 2020-006355 Application 15/429,313 5 combination of references.” In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (citing In re Keller, 642 F.2d 413, 425 (Fed. Cir. 1981)). Here, the Examiner relied upon the combination of Yan and Birch to reject the representative claim 1. See Final Action 2. The Examiner finds Yan discloses forming a completed properly- configured display. See Final Action 3 (citing Yan ¶¶ 35, 66–68, 71, 72, 98 and 99). Appellant does not dispute the Examiner’s finding. See Appeal Brief 7–10. Yan further discloses “planograms used for the configuration, maintenance, and compliance confirmation in the display of merchandise and advertisements” where: [T]he user may drag-and-drop and scale images of signs or products into an image of specific shelves or racks in an aisle of a grocery store to simulate how the actual objects will look when placed in the aisle. The placement of the images of the objects may be free-form and left to the discretion of the designing user. Yan Abstract, ¶ 67 (emphasis added); see Final Action 3. The Examiner finds Birch discloses “a properly-configured though incomplete display” as recited in claim 1 in Figure 7, paragraphs 34–38. Final Action 5, 6. The Examiner determines that Birch’s Figure 7 discloses an incomplete display as defined by Appellant’s Specification paragraph 38. See Final Action 5, 6; Answer 3, 4. Birch Figure 7 is reproduced below: Appeal 2020-006355 Application 15/429,313 6 “As illustrated in FIG. 7, [reproduced above] in various embodiments, the planogram 190 may include a representation of one or more products on a representation of the presentation structure 110, such as representation of products 710. However, in various examples, planogram 190 may include a placement of a product on the presentation structure 110 that differs from the real-world current placement of products on the presentation structure 110 that was captured in the acquired image 140.” Birch ¶ 37. Appellant contends that, “many planograms depict, as a full and complete display, a display that includes some open area to accommodate additional inventory.” Appeal Brief 10. Appellant’s argument does not convince us of Examiner error because the argument is not supported by Appellant’s Specification or Figures. See Appeal Brief 4 (citing ¶¶ 23, 39 and 40). Further, we find Appellant’s argument is not commensurate with the scope of the broadest reasonable interpretation of the claim because claim 1 recites “the physical display is only partially completed.” Consistent with the Specification (which provides no description of what constitutes “partial” completion), we discern no meaningful difference between a physical display being partially completed and a physical display having open areas for placing more products (e.g., more stacked cans in the second Appeal 2020-006355 Application 15/429,313 7 row of Birch’s Figure 7). We note, that “[a]s our precedents make clear, however, the analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). Accordingly, we agree with the Examiner’s determination that Birch discloses “a properly-configured though incomplete display” as recited in claim 1 because Birch discloses in Figure 7 a shelf with an open area which is commensurate with the scope of the claim. We sustain the Examiner’s obviousness rejection of claim 1, as well as, the obviousness rejections of claims 2–14 not argued separately. See Appeal Brief 10. However, in the event of further prosecution, the Examiner should consider whether claim 1 is indefinite because of the “complete” and “incomplete” limitations recited in the claim. We note, that “[w]hen a claim term depends solely on the unrestrained, subjective opinion of a particular individual purportedly practicing the invention, without sufficient guidance in the specification to provide objective direction to one of skill in the art, the term is indefinite.” DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1260 (Fed. Cir. 2014) (quotation omitted). CONCLUSION Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–10 103 Yan, Birch 1–10 11–13 103 Yan, Birch, Wu 11–13 14 103 Yang, Birch, Hicks 14 Overall Outcome 1–14 Appeal 2020-006355 Application 15/429,313 8 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). See 37 C.F.R. § 1.136(a)(1)(v) (2019). AFFIRMED