Ex Parte Badugu et al

Board of Patent Appeals and Interferences

Oct 17, 2005

09860407 (B.P.A.I. Oct. 17, 2005)

1
The opinion in support of the decision being entered today
was not written for publication and is not binding precedent
of the Board.
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte UJWAL RAO BADUGU,
SRIKANTAPPA RAVI KUMAR,
SHRIRAM K. SUBRAMANIAN,
and JERRY GENE WOOD
__________
Appeal No. 2005-1781
Application 09/860,407
__________
ON BRIEF
__________
Before THOMAS, JERRY SMITH and BARRETT, Administrative Patent
Judges.
JERRY SMITH, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on the appeal under 35 U.S.C. § 134 from
the examiner’s rejection of claims 11-15 and 28-34, which
constitute all the claims pending in this application.
Appeal No. 2005-1781
Application No. 09/860,407
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The disclosed invention pertains to a computer system for
promoting in real time a representative in a marketing plan.
Representative claim 11 is reproduced as follows:
11. A system for promoting in real time a representative in
a marketing plan with a plurality of career levels, the
representative associated with account information including a
relational hierarchy comprising a plurality of representatives
and customers, the system comprising:
an application entry system;
a database accessible to the application entry system, the
database including the account information and a plurality of
promotion parameters defining at least one qualification
necessary for promotion to each of the plurality of career
levels;
software, operable to interact with the database, the
software comprising instructions for:
accepting application information for an addition to the
hierarchy through the application entry system;
updating the account information to reflect the application
information;
entering the representative in a queue, the entry notifying
the system that the representative may qualify for a promotion;
dequeueing the representative from the queue;
retrieving the plurality of promotion parameters from the
database;
retrieving the updated account information from the
database;
applying the promotion parameters to the account information
to determine if the representative qualifies for a promotion;
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Application No. 09/860,407
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promoting the representative in real time if the account
information satisfies the promotion parameters; and
sending a payment based on the promotion to the
representative if an assessment of a status associated with the
representative indicates that the representative qualifies for
the payment; and
a customer interface accessible to the database for enabling
a customer associated with the representative to submit an
application for a product or service, wherein the submission of
the application initiates the entry of the representative into
the queue.
The examiner relies on the following references:
Intel Press Release, Quixtar Inc. Creates A New Business Model
For The Internet Using Intel®-Architecture Based Servers, October
13, 2000 [Google](Intel).
Quixtar Business Compendium, Quixtar Inc., 2000 [Google]
(Quixtar).
Claims 11-15 and 28-34 stand rejected under 35 U.S.C.
§ 103(a). As evidence of obviousness the examiner offers Intel
in view of Quixtar.
Rather than repeat the arguments of appellants or the
examiner, we make reference to the brief and the answer for the
respective details thereof.
OPINION
We have carefully considered the subject matter on appeal,
the rejection advanced by the examiner and the evidence of
obviousness relied upon by the examiner as support for the
Appeal No. 2005-1781
Application No. 09/860,407
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rejection. We have, likewise, reviewed and taken into
consideration, in reaching our decision, the appellants’
arguments set forth in the brief along with the examiner’s
rationale in support of the rejection and arguments in rebuttal
set forth in the examiner’s answer.
It is our view, after consideration of the record before us,
that the evidence relied upon and the level of skill in the
particular art would have suggested to one of ordinary skill in
the art the obviousness of the invention as set forth in the
claims on appeal. Accordingly, we affirm.
In rejecting claims under 35 U.S.C. § 103, it is incumbent
upon the examiner to establish a factual basis to support the
legal conclusion of obviousness. See In re Fine, 837 F.2d 1071,
1073, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988). In so doing, the
examiner is expected to make the factual determinations set forth
in Graham v. John Deere Co., 383 U.S. 1, 17, 148 USPQ 459, 467
(1966), and to provide a reason why one having ordinary skill in
the pertinent art would have been led to modify the prior art or
to combine prior art references to arrive at the claimed
invention. Such reason must stem from some teaching, suggestion
or implication in the prior art as a whole or knowledge generally
available to one having ordinary skill in the art. Uniroyal,
Inc. v. Rudkin-Wiley Corp., 837 F.2d 1044, 1051, 5 USPQ2d 1434,
Appeal No. 2005-1781
Application No. 09/860,407
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1438 (Fed. Cir.), cert. denied, 488 U.S. 825 (1988); Ashland Oil,
Inc. v. Delta Resins & Refractories, Inc., 776 F.2d 281, 293, 227
USPQ 657, 664 (Fed. Cir. 1985), cert. denied, 475 U.S. 1017
(1986); ACS Hosp. Sys., Inc. v. Montefiore Hosp., 732 F.2d 1572,
1577, 221 USPQ 929, 933 (Fed. Cir. 1984). These showings by the
examiner are an essential part of complying with the burden of
presenting a prima facie case of obviousness. Note In re
Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir.
1992). If that burden is met, the burden then shifts to the
applicant to overcome the prima facie case with argument and/or
evidence. Obviousness is then determined on the basis of the
evidence as a whole and the relative persuasiveness of the
arguments. See Id.; In re Hedges, 783 F.2d 1038, 1039, 228 USPQ
685, 686 (Fed. Cir. 1986); In re Piasecki, 745 F.2d 1468, 1472,
223 USPQ 785, 788 (Fed. Cir. 1984); and In re Rinehart, 531 F.2d
1048, 1052, 189 USPQ 143, 147 (CCPA 1976). Only those arguments
actually made by appellants have been considered in this
decision. Arguments which appellants could have made but chose
not to make in the brief have not been considered and are deemed
to be waived [see 37 CFR § 41.37(c)(1)(vii)(2004)].
The examiner has indicated how each of the claims on appeal
is believed to be unpatentable based on the applied prior art
[answer, pages 3-11]. With respect to independent claim 11,
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Application No. 09/860,407
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appellants argue that Quixtar teaches recognition rather than
promotion of an associate, and that Quixtar teaches manual rather
than automatic promotion. Appellants also argue that the
rejection of claim 11 is improper because the examiner has issued
a blanket rejection of the remaining elements of claim 11 [brief,
pages 8-9]. The examiner responds that the rejection has
specifically considered each of the limitations recited in claim
11. The examiner also further explains how he has interpreted
the claimed invention such that the claimed invention is rendered
obvious by the teachings of Intel and Quixtar. The examiner
notes that the recognition of an associate as a new silver
producer constitutes a promotion of the associate to the Silver
Producer status. The examiner also notes that there is at least
one situation in Quixtar where the associate is automatically
recognized [answer, pages 11-16].
We will sustain the examiner’s rejection of claims 11-15 for
the reasons argued by the examiner in the answer. We agree with
the examiner that some of the recognitions taught in Quixtar,
such as becoming a Platinum, are promotions because the associate
is given new responsibilities. We also agree with the examiner
that recognition (promotion) is automatic in Quixtar unless a
newly qualified associate has purchased products from his upline
(page E-1). Thus, appellants’ specific arguments are not
Appeal No. 2005-1781
Application No. 09/860,407
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persuasive of error in the rejection. With respect to
appellants’ general argument that the examiner has made a blanket
rejection, we do not agree. The examiner has clearly considered
each of the elements of claim 11 in the rejection. Appellants
have elected not to argue the specific findings made by the
examiner with respect to each of the claimed elements. Since the
only arguments made by appellants are not persuasive of error in
the rejection, the examiner’s rejection has not been overcome.
With respect to independent claim 28, appellants again argue
that the examiner has failed to make a proper rejection of the
claim. Appellants also argue that the cited references fail to
teach a software architecture as recited in claim 28. Finally,
appellants argue that the examiner has unreasonably interpreted
elements of the claim [brief, pages 9-11]. The examiner responds
that Quixtar is running its e-Commerce site on Intel
architecture-based servers. The examiner notes that such servers
are inherently computer based and employ software [answer, page
16].
We will sustain the examiner’s rejection of claims 28-31 for
the reasons argued by the examiner in the answer. We agree with
the examiner that the compensation system taught in Quixtar
performs the steps recited for the first commissions system of
claim 28. With respect to appellants’ general argument that the
Appeal No. 2005-1781
Application No. 09/860,407
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examiner has made a blanket rejection, we do not agree. The
examiner has clearly considered each of the elements of claim 28
in the rejection. Appellants have elected not to argue the
specific findings made by the examiner with respect to each of
the claimed elements. Since the only arguments made by
appellants are not persuasive of error in the rejection, the
examiner’s rejection has not been overcome.
With respect to independent claim 32, appellants make the
same general argument that we considered above. Appellants also
argue that the examiner’s interpretation fails to identify the
recited relationship between the various claim elements [brief,
pages 11-12]. The examiner responds to the general argument in
the same manner noted above. The examiner also responds that the
computer-based system of Quixtar inherently employs machine-
readable code or objects. The examiner notes that the rejection
explains how the claimed objects are taught by Quixtar [answer,
pages 16-17].
We will sustain the examiner’s rejection of claims 32-34 for
the reasons argued by the examiner in the answer. With respect
to appellants’ general argument that the examiner has made a
blanket rejection, we do not agree. The examiner has clearly
considered each of the elements of claim 32 in the rejection and
explained how the objects claimed therein are taught by Quixtar.
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Application No. 09/860,407
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Rather than specifically argue why the findings of the examiner
are incorrect, appellants have elected to simply state that the
rejection is improper. We find that the examiner’s rejection at
least sets forth a prima facie case of obviousness. Since the
only arguments made by appellants are not persuasive of error in
the rejection, the examiner’s rejection has not been overcome.
In summary, we have sustained the examiner’s rejection with
respect to each of the claims on appeal. Accordingly, the
decision of the examiner rejecting claims 11-15 and 28-34 is
affirmed.
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Application No. 09/860,407
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No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a)(1)(iv).
AFFIRMED
JAMES D. THOMAS )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
JERRY SMITH ) APPEALS AND
Administrative Patent Judge ) INTERFERENCES
)
)
)
LEE E. BARRETT )
Administrative Patent Judge )
JS/dal
Appeal No. 2005-1781
Application No. 09/860,407
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