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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/778,369 05/12/2010 Christopher BAYNE 510-27-003 6299
23935 7590 11/30/2017
KOPPEL, PATRICK, HEYBL & PHILPOTT
2815 Townsgate Road
SUITE 215
Westlake Village, CA 91361-5827
EXAMINER
BROWN, VERNAL U
ART UNIT PAPER NUMBER
2686
NOTIFICATION DATE DELIVERY MODE
11/30/2017 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):
GENERALMAIL@KOPPELPATENT.COM
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISTOPHER BAYNE,
CHRISTOPHER BUTLER, and LEONARD SIM
Appeal 2017-002371
Application 12/778,369
Technology Center 2600
Before THU A. DANG, LINZY T. McCARTNEY, and SCOTT E. BAIN,
Administrative Patent Judges.
McCARTNEY, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
1—44. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
Appeal 2017-002371
Application 12/778,369
STATEMENT OF THE CASE
The present patent application “relates to a system and method for
regulating access to a resource, such as an attraction, ride, show[,] or event,
as may be found in an amusement park.” Specification p. 1,11. 4—6, filed
May 12, 2010 (“Spec.”). Claim 1 illustrates the claimed subject matter:
1. A system for regulating access to a resource by a plurality
of users, the system comprising:
a plurality of portable access keys, each portable access
key being provided to one of the plurality of users and having a
variable access parameter associated therewith, each portable
access key further allowing the respective user to indicate a
desire for a number of people to access the resource; and
a queue manager, arranged to:
set an access criterion for the resource;
determine the variable access parameter for a portable
access key for which a desire to access the resource has been
indicated; and
allow the user of the portable access key to join an access
queue if the variable access parameter meets the access criterion,
users being provided access to the resource from a front of the
access queue as capacity becomes available on the resource,
the queue manager being further configured to determine
a characteristic for the access queue, related to a number of users
in the access queue; and
wherein the queue manager is further configured to set the
access criterion for the resource, upon which basis a
determination is made for allowing the user of the portable access
key to join the access queue, on the basis of a characteristic for
the access queue, dynamically affecting the rate at which users
join the access queue thereby.
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REJECTIONS
Claims 1—44 stand provisionally rejected on the ground of
nonstatutory obviousness-type double patenting as unpatentable over claims
1—20 of US Patent Application 12/291,745. Final Office Act. 2—4, mailed
September 16, 2014 (“Final Act.”).
Claims 1-5, 7, 8, 12-18, 20-24, 28, 29, 31, 34, 35, and 37-A2 stand
rejected under 35 U.S.C. § 102(b) as anticipated by Mahoney et al. (US
Patent 5,502,806; March 26, 1996). Final Act. 4—13.
Claims 6, 19, and 25 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Mahoney and Sim (US Patent 6,529,786 Bl; March 4,
2003). Final Act. 14-15.
Claims 9-11 and 44 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Mahoney and Mardirossian (US Patent Application
Publication 2007/0168390 Al; July 19, 2007). Final Act. 15—16.
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments, and we disagree with Appellants that the Examiner erred. To the
extent consistent with the analysis below, we adopt the Examiner’s
reasoning, findings, and conclusions set forth in the appealed action and the
Examiner’s Answer.
We address Appellants’ arguments in turn below. We consider only
the arguments Appellants adequately presented in their brief. Appellants
have waived arguments Appellants failed to timely raise or properly
develop. See 37 C.F.R. §§ 41.37(c)(l)(iv), 41.41(b)(2).
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Application 12/778,369
Double Patenting Rejection
Although Appellants note the patent application that forms the basis
for the Examiner’s double patenting rejection has issued as a patent,
Appellants do not substantively challenge the Examiner’s double patenting
rejection. See Br. 18. Because Appellants do not substantively challenge
this rejection, we summarily sustain it.
Anticipation Rejection
With respect to this ground of rejection, Appellants argue claims 1—5,
7, 8, 12—18, 20-24, 28, 29, 31, 34, 35, and 37-42 together. See Appeal Brief
9-16, filed May 13, 2015 (“Br.”). As permitted by 37 C.F.R. § 41.37, we
decide the appeal as to this ground of rejection based on claim 1. See
37 C.F.R. § 41.37(c)(iv) (“When multiple claims subject to the same ground
of rejection are argued as a group ... the Board may select a single claim
from the group . . . and may decide the appeal as to the ground of rejection
with respect to the group ... on the basis of the selected claim alone.”).
Claim 1 recites in relevant part:
the queue manager being further configured to determine
a characteristic for the access queue, related to a number of users
in the access queue; and
wherein the queue manager is further configured to set the
access criterion for the resource, upon which basis a
determination is made for allowing the user of the portable access
key to join the access queue, on the basis of a characteristic for
the access queue, dynamically affecting the rate at which users
join the access queue thereby.
Br. 9—16. According to Appellants, these limitations require “the number of
users in the access queue . . . [be] taken into consideration to determine if
other portable access key users can enter the access queue ... of the
particular resource.” Br. 11 (emphasis added). Appellants argue that, in
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Application 12/778,369
contrast, Mahoney relies on a user’s arrival time to determine if a person can
enter an access queue, not the number of users in an access queue as
required by the disputed limitations. See Br. 12.
We find Appellants’ arguments unpersuasive because the arguments
are not commensurate with the scope of claim 1. Although claim 1 recites
“the queue manager being further configured to determine a characteristic
for the access queue, related to a number of users in the access queue,” Br.
32,1 claim 1 does not recite using this characteristic to determine whether the
user can join the access queue as argued by Appellants. Rather, claim 1
recites “the queue manager is further configured to set the access criterion
for the resource, upon which basis a determination is made for allowing the
user of the portable access key to join the access queue, on the basis of a
characteristic for the access queue.” Br. 32 (emphases added). This
limitation makes clear that the claimed system uses an “access criterion” to
determine if the recited user can join the access queue, and that the system
can set the criterion based on “<2 characteristic for the access queue.”
The indefinite article “a” before “characteristic for the access queue”
indicates that “a characteristic for the access queue” refers to an unspecified
access queue characteristic, not the “characteristic for the access queue,
related to a number of users in the access queue” recited earlier in claim 1.
See, e.g., a, Merriam-Webster’s Collegiate Dictionary (11th ed. 2003)
(explaining that “a” is “used as a function word before singular nouns when
the referent is unspecified
”). If the claimed system were
1 Appellants’ Claims Appendix, which includes both the original and appealed
claims, lacks page numbers. We treat the Claims Appendix as if Appellants
had consecutively numbered the Claims Appendix as a continuation of the
Appeal Brief.
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Application 12/778,369
“configured to set the access criterion ... on the basis of’ the previously
recited “characteristic for the access queue, related to a number of users in
the access queue” as Appellants contend, claim 1 likely would have referred
to this characteristic using a word such as “the” or “said” instead of “a.” See
the, Merriam-Webster’s Collegiate Dictionary (11th ed. 2003)
(explaining that “the” is “used as a function word to indicate that a following
noun . . . has been previously specified by context or by circumstance”);
said, Merriam-Webster’s Collegiate Dictionary (11th ed. 2003)
(explaining that “said” means “aforementioned”). Therefore, contrary to
Appellants’ arguments, claim 1 does not require considering the number of
users in an access queue when determining if the claimed user can join the
queue.
Appellants also contend Mahoney does not disclose “dynamically
affecting the rate at which users join the access queue thereby” as recited in
claim 1. According to Appellants, Mahoney’s system adjusts an “interleave
ratio” to control the rate at which cardholders and non-cardholders leave a
line, not the rate at which they join a line as required by claim 1. Br. 12—13.
We find Appellants’ arguments unpersuasive. As an initial matter, the
clause “dynamically affecting the rate at which users join the access queue
thereby” merely recites a result of claim 1 ’s “wherein” limitation. Such
clauses are not entitled to patentable weight. See Tex. Instruments Inc. v.
U.S. Int’l Trade Comm’n, 988 F.2d 1165, 1172 (Fed. Cir. 1993) (“A
‘whereby’ clause that merely states the result of the limitations in the claim
adds nothing to the patentability or substance of the claim.”); Thermal
Dynamics v. Tatras, Inc., No. 04-152-PB, 2004 WL 4957314, at *6 (D.N.H.
Dec. 9, 2004) (concluding a “thereby” clause that only stated a result did not
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Application 12/778,369
limit the claims in light of Texas Instruments). Moreover, claim 1 recites
“[a] system for regulating access to a resource by a plurality of users.” Br.
32 (emphasis added). “It is well settled that patentability of apparatus claims
must depend upon structural limitations and not upon statements of
function.” In reMichlin, 256 F.2d 317, 320 (CCPA 1958). See also In re
Mason, 244 F.2d 733, 735 (CCPA 1957) (explaining that a functional
statement in claims to a “package for a commodity” did “not define any
structure and accordingly [could not] serve to distinguish [the claims] . . .
which are not process claims, from the reference”).
Even if this limitation were entitled to patentable weight, we would
not agree with Appellants that the Examiner erroneously concluded
Mahoney anticipates claim 1. Figure 1 of Mahoney depicts an exemplary
embodiment of Mahoney’s system:
As shown in Figure 1, in Mahoney’s system, cardholders 62 and non
cardholders 72 wait in separate card 66 and non-card 70 lines for the same
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Application 12/778,369
theme park attraction (not shown). Cardholders 62 can reserve a time slot
for the attraction and join card line 66 if they arrive at the attraction during
their reserved time slot; non-cardholders 72 must wait in line to join separate
card line 70. See Mahoney Fig. 1, col. 4 11. 1—66, col. 5 11. 14—18. As
acknowledged by Appellants, when the card line 66 grows too large, the
system reduces the number of non-card holders 72 that can pass through gate
90 and access the attraction, which increases the number of cardholders 62
that can access the attraction through gate 74 and shortens card line 66. See
Br. 12; see also Mahoney col. 4 11. 52—59 (“A typical card line 66 is never
allowed to fill completely. If the ride cycle times perform more slowly than
predicted ... the card line 66 would begin to grow in size. When this
occurs, the waiting line management computer 16 modifies the ratio of card
patron 62 to non-card patrons 72 who are allowed access to the ride until the
card line 62 is reduced to normal size.” (emphases omitted)).
Appellants posit that reducing the number of non-cardholders 72 that
can access the attraction does not affect the rate at which cardholders 62 join
line 66 because Mahoney’s “timeslot reservation system . . . necessarily
means that the rate at which cardholders 62 join the card line 66 is fixed.”
Br. 13. Even assuming this is true, only cardholders can reserve time slots.
As explained above, non-cardholders 72 cannot reserve time slots and must
wait to join separate non-card line 70. See Mahoney Abstract, col. 4 11. 1—
66, col. 5 11. 14—18. As is evident from Figure 1, when Mahoney’s system
reduces the number of non-cardholders 72 that can access the attraction, the
number of non-cardholders 72 in non-card line 70 will increase, leading to
longer waits to access non-card line 70. Cf. Mahoney col. 4 11. 53—55 (“If
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Application 12/778,369
the ride cycle times perform more slowly than predicted . . . the card line 66
would begin to grow in size.”).
Moreover, Mahoney discloses that “[tjhrough certain inputs that may
be determined from time to time by theme park operators, the [management
system’s] host computer can vary or alter with each attraction, the
percentage of the total available spaces or places that are allocated for use by
[cardholders].” Mahoney col. 6 11. 20—24 (reference number omitted); see
also Ans. 3 (discussing Mahoney col. 6 11. 20-30). Mahoney discloses these
“spaces or places ... are offered as available time slots.” Mahoney col. 5 11.
9—11; see also Advisory Act. 2, mailed December 1, 2014 (“Adv. Act”)
(discussing Mahoney col. 5 11. 7—13). Put differently, Mahoney discloses the
waiting line management system can from “time to time” vary or alter the
times slots available to cardholders.
The Examiner found that because “the number of time slots available
to be selected by the [cardholder] changes,” Mahoney’s system “directly
affect[s] the rate [] which the card holding patron join[s] the line because a
patron cannot join the card line without receiving an associated time slot.”
Ans. 3. That is, when Mahoney’s system removes a time slot, the system
has “dynamically affect[ed] the rate at which users join the access queue
thereby” because cardholders can no longer access the queue during that
time slot.
With respect to this finding, Appellants contend the portion of
Mahoney cited by the Examiner in the Advisory Action does not support the
Examiner’s contention that Mahoney’s system dynamically adjusts the rate
at which users join an access queue. Br. 13—14. Appellants also contend the
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Examiner’s rejection improperly relies on a conclusory inherency finding in
the Advisory Act. Br. 15—16.
We find these contentions unpersuasive. First, the portions of
Mahoney cited by the Examiner in both the Final Rejection and the Answer
support the Examiner’s finding that Mahoney’s time slots control access to
card line 66. For example, the cited portions of Mahoney disclose that if
cardholders 62 arrive at an attraction during their reserved time slots,
Mahoney’s system allows the cardholders to join card line 66; if not,
Mahoney’s system denies cardholders 62 access to card line 66. See
Mahoney col. 2 11. 33—38, col. 4 11. 33—44; see also Final Act. 5 (citing
Mahoney col. 4 11. 33—50); Ans. 2 (citing Mahoney col. 2 11. 14-44).
Second, the Examiner did not rely on inherency to reject claim 1 in
the rejection before us on appeal. See Final Act. 4—5. Even if the Examiner
had relied on inherency, we find the Examiner’s response to Appellants’
arguments provides sufficient rationale to support an inherency finding. In
particular, the Examiner explained
[i]t is therefore the [Ejxaminer’s position that by altering from
time to time the number of allocated time slots to the card holders
for each attraction automatically alters the number of persons
allowed to join the card line and dynamically affecting the rate
at which users join the access queue because the number of time
slots directly increases or decreases [the] number of persons that
are allowed to join the card line. . . .
It is the [Ejxaminer’s position that while a card holder patron
having a reserved time slot is assured access to the card line for
the reserved time slot, the number of time slot[s] available to be
selected by the patron changes and therefore directly affect[s] the
rate at which the card holding patron [may] join the line because
a patron cannot join the card line without receiving an
associated time slot.
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Application 12/778,369
Ans. 2—3 (emphases added). Appellants have not persuasively challenged
this reasoning.
Finally, Appellants contend their invention provides certain
advantages over Mahoney’s system. See, e.g., Br. 13—14 (discussing the
alleged advantages of Appellants’ system). But claim 1 does not explicitly
recite these purported advantages; therefore, we find this argument
unpersuasive.
For the above reasons, we sustain the Examiner’s anticipation
rejection of claim 1 and claims 2—5, 7, 8, 12—18, 20—24, 28, 29, 31, 34, 35,
and 37^42.
Obviousness Rejections
With respect to the Examiner’s obviousness rejection of dependent
claims 6, 19, and 25, Appellants argue these claims together. See Br. 16—17.
We decide the appeal as to this ground of rejection based on claim 6. See
37 C.F.R. § 41.37(c)(iv). Concerning this ground of rejection, Appellants
argue “Sim does not disclose the features missing in Mahoney.” Br. 16.
Appellants also contend Sim does not teach or suggest a “variable access
parameter” or contributing “toward[] the determination as to whether the
user can access a resource,” and entering “[rjequests for access to a
resource.” Br. 16.
We find these arguments unpersuasive. Appellants argue against
Sims individually, but the Examiner found a combination of Mahoney’s and
Sim’s teachings suggests the subject matter recited in claim 6. See Final
Act. 14—15. “[0]ne cannot show non-obviousness by attacking references
individually where, as here, the rejections are based on combinations of
references.” In re Keller, 642 F.2d 413, 426 (CCPA 1981).
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As for the Examiner’s obviousness rejection of dependent claims 9—
11 and 44, Appellants also argue these claims together. See Br. 17—18. We
decide the appeal on this ground of rejection based on claim 9, see 37 C.F.R.
§ 41.37(c)(iv). With respect to this claim, Appellants argue “Mardirossian
does not disclose or suggest an attraction that is arranged to count the
number of users that enter its line.” Br. 17. However, the Examiner also
found Mahoney suggests this limitation, Ans. 5—6, and Appellants have not
persuasively challenged this finding. Moreover, as found by the Examiner,
Mardirossian explicitly discloses “simply counting the number of people in a
given line” to determine how crowded a line is and that “video cameras may
be used to report on the status of a line . . . motion sensors, human operation,
IR detectors, turnstiles . . . may be substituted or used ... to report on the
status of lines.” Mardirossian H 21, 39; Ans. 6 (citing Mardirossian H 21,
32, 39). These disclosures adequately support the Examiner’s finding.
Appellants also argue the Examiner improperly equates
Mardirossian’s discussion of revoking authorization to access an attraction
to the recited “variable access parameter” and “access criterion.” Br. 17.
But the Examiner found Mahoney teaches these elements and concluded a
combination of Mardirossian’s and Mahoney’s teachings suggests the
limitations recited in claim 9. See Final Act. 15—16. Appellants’arguments
against Mardirossian alone have not persuaded us the Examiner erred.
For the above reasons, we sustain the Examiner’s obviousness
rejections of claims 6, 19, and 25 and claims 9-11 and 44.
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DECISION
We affirm the Examiner’s rejections of claims 1—44.2
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
2 Should prosecution continue, the Examiner may consider whether the
claims are directed to a patent-ineligible abstract idea such as, for example, a
method of organizing human activity or a mental process that can be
performed in the mind or using pen and paper.
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