Ex Parte Darago et al

Patent Trial and Appeal Board

Sep 22, 2016

14294871 (P.T.A.B. Sep. 22, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
14/294,871
23484 7590
John Ogilvie
2148 E. 11270 S.
Sandy, UT 84092
FILING DATE FIRST NAMED INVENTOR
06/03/2014 Vincent S. Darago
09/26/2016
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
5045.2.lH 6281
EXAMINER
HOANG, HIEU T
ART UNIT PAPER NUMBER
2452
NOTIFICATION DATE DELIVERY MODE
09/26/2016 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):
john@OgilvieLawFirm.com
johnwogilvie@gmail.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte VINCENTS. DARAGO and
CHRISTOPHER JENKINS 1
Appeal2015-0058692
Application 14/294,871
Technology Center 2400
Before ADAM J. PYONIN, AMBER L. HAGY, and SHARON PENICK,
Administrative Patent Judges.
HAGY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 38---67, which are all of the pending claims. 3 We
have jurisdiction over these claims under 35 U.S.C. § 6(b ).
We affirm.
1 Appellants identify Digital-Vending Services International LLC as the real
party in interest. (App. Br. 1.)
2 Appellants identify pending Application No. 14/164, 178 ("the '178
Application") as the parent of the application that is the subject of the
present appeal. (App. Br. 1.) The '178 Application is the subject of co-
pending Appeal No. 2015-005867.
3 Claims 1-37 have been canceled.
Appeal2015-005869
Application 14/294,871
Introduction
According to Appellants, "[ t ]he present invention relates to content
delivery over a large computer network, and more particularly to a computer
network architecture which integrates management components such as a
reservation system, a funds flow system, a metering system, and a security
system for preventing unauthorized use of courseware and other content."
(Spec. 1:11-14.)
Exemplary Claim
Claim 38, reproduced below, is exemplary of the claimed subject
matter:
38. A multi-level computer architecture for managing content
m a shared use operating environment, the architecture
compnsmg:
a registration server level including at least one registration
server which assists in processing a new user registration;
and
a content server level including at least one content server, each
content server containing content managed by the
architecture, at least a portion of the content managed by the
architecture being a previously treated critical portion, each
content server being further characterized in that it serves
the critical portion of the content only for presentation to
registered users, namely, users who have previously been
registered with a registration server.
2
Appeal2015-005869
Application 14/294,871
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Logan et al.
Ahn
Park
Gregg et al.
Salesky et al.
Wiser et al.
us 5,732,216
us 5,745,642
us 5, 796,826
US 2002/0002688 A 1
US 6,343,313 Bl
US 6,385,596B1
REJECTIONS4
Mar. 24, 1998
Apr. 28, 1998
Aug. 18, 1998
Jan.3,2002
Jan.29,2002
May 7, 2002
Claims 38, 39, 42, 46, 48, 49, 50, 52, 54, 56-59, 62, 63, and 65----67
stand rejected under 35 U.S.C. § 102(a) as being anticipated by Gregg.
(Final Act. 8-12.)
Claims 40 and 43 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Gregg and Wiser. (Final Act. 12-13.)
Claims 41, 55, and 64 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Gregg and Salesky. (Final Act. 13-14.)
Claims 44, 45, 47, 51, and 60 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Gregg and Official Notice. (Final Act. 14--16.)
Claims 53 and 61 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Gregg and Logan. (Final Act. 16.)
4 Independent claims 38, 54, and 62 also stand provisionally rejected for
obviousness-type double patenting over issued U.S. Patent Nos. 6, 170,014;
6,282,573; 6,606,664; and 8,676,712. (Final Act. 3-7.) Appellants do not
appeal those rejections, and state they have "already agreed to submit a
terminal disclaimer after claim language is agreed on." (App. Br. 4.) The
double-patenting rejections are, therefore, not before us.
3
Appeal2015-005869
Application 14/294,871
ISSUE5
The issue presented by Appellants' contentions is whether the
Examiner erred in finding Gregg discloses the limitations of claim 38.
ANALYSIS6
Appellants provide limited explanation and analysis in the Appeal
Brief regarding the merits of their argument, and refer the Board to the
arguments presented by Appellants in a response, dated August 26, 2014, to
the Office Action of August 4, 2014. (App. Br. 4.) As an initial matter, we
note Appellants' argument by reference is improper, as Appellants must
present all arguments in Appellants' briefing to the Board. See 37 C.F.R.
§ 41.37(c)(l)(iv) ("[A]ny arguments or authorities not included in the appeal
brief will be refused consideration by the Board."); see also DeSilva v.
DiLeonardi, 181F.3d865, 867 (7th Cir. 1999) ("[I]ncorporation [by
reference] is a pointless imposition on the court's time. A brief must make
all arguments accessible to the judges, rather than ask them to play
archaeologist with the record."). We have, however, reviewed Appellants'
cited response, and we do not find it any more persuasive than Appellants'
abbreviated arguments on appeal. As discussed further below, we are not
5 Although the claims are subject to rejections on different grounds and
different combinations of references, as noted above, Appellants argue only
the Examiner's findings regarding claim 38 and the Gregg reference. (App.
Br. 4--8; Reply Br. 1-2.) Appellants state: "For the purpose of this Appeal
only, the claims are grouped together." (App. Br. 4.) Therefore, we select
claim 38 as the representative claim, pursuant to our authority under
37 C.F.R. § 41.37(c)(l)(iv). Claims 39----67 stand or fall with claim 38.
6 Only those arguments made by Appellants have been considered in this
decision. Arguments Appellants did not make in the briefs have not been
considered and are deemed to be waived. See 37 C.F.R. § 41.37(c)(l)(iv).
4
Appeal2015-005869
Application 14/294,871
persuaded the Examiner has erred in finding Gregg discloses the limitations
of claim 38.
Claim 38 recites a "multi-level computer architecture for managing
content in a shared use operating environment," comprising a "registration
server level including at least one registration server ... " and a "content
server level including at least one content server .... " (App. Br. 10 (Claims
App'x).) The Examiner finds, and we agree, "[b]ecause of the phrase 'at
least one,' a registration server level can mean just a registration server and a
content server level can mean just a content server." (Ans. 3--4.)
Appellants' argument that this finding ignores the claim term "level" is not
persuasive. (Reply Br. 2.) Claim 38, in light of the Specification, does not
define either recited "level" in terms of anything other than one or more
servers that perform particular functions.
The Examiner finds Gregg teaches the limitations of claim 38,
mapping the "clearinghouse 30" of Gregg to the claimed "registration
server," and the "server 44" of Gregg to the claimed "content server." (Final
Act. 8; Ans. 3--4.) In particular, the Examiner finds, and we agree:
Gregg clearly teaches a content server level and a registration
server level (fig[s]. 3, 4, [0053], [0054], clearinghouse server 30
is read as a registration server which contains the subscription
database and controls the authentication and authorization of
subscribers for individually enabled web servers; [0096], server
44 with server application and service function for providing
protected content and unprotected content to users is read as a
content server).
(Ans. 4.)
Appellants argue these findings are in error because "the alleged
content server and the alleged registration server [of Gregg] are not separate
-they overlap." (App. Br. 6 (emphasis omitted).) In particular, Appellants
5
Appeal2015-005869
Application 14/294,871
argue "Gregg teaches an overlap between the components which process
new subscriber applications and the components which serve protected
contents." (Id.) Appellants do not appear to argue that the servers
themselves are physically commingled, but instead argue Gregg's system
uses both servers, to some extent, as part of the "[o]nline application process
for new subscribers" and also as part of the "[p ]rocess for serving protected
contents." (See id. and App. Br. 7 (diagram purportedly depicting overlap in
components used in both processes).)
Appellants' arguments are premised on the contention that claim 3 8
precludes an overlap in usage of the recited "registration" and "content"
servers for a single process. Although claim 3 8 does not contain the term
"separate," Appellants attempt to anchor their argument in the preamble's
recitation of a "multi-level computer architecture," which Appellants argue
requires "separate" servers-by which Appellants mean not just a "physical
separation" of the servers but a separation of their functions. (See App. Br.
6.)
It is well settled that we must give the terms of a claim their broadest
reasonable interpretation, consistent with Appellants' Specification, as they
would be interpreted by one of ordinary skill in this art. In re Morris, 127
F.3d 1048, 1054--55 (Fed. Cir. 1997); In re Zletz, 893 F.2d 319, 321-22
(Fed. Cir. 1989). Not only does claim 38 lack any language precluding
usage of the "registration sever" and the "content server" in one process, but
the Appellants point to nothing in the Specification that requires construing
the term "multi-level computer architecture" (or any other term recited in
claim 38) as imposing such a requirement. Accordingly, Appellants'
argument does not find support in the limitations of the claim and, as such, it
is inherently unpersuasive. See In re Self, 671 F.2d 1344, 1348 (CCPA
6
Appeal2015-005869
Application 14/294,871
1982) ("[A]ppellant's arguments fail from the outset because ... they are
not based on limitations appearing in the claims.").
We further note Appellants' reference to a "litigated claim
construction" is misplaced. (App. Br. 5: "the courts' claim construction
requires that separation and distinction") (citing Appellants' Aug. 26, 2014
Response to Office Action).) Not only do Appellants fail to explain what
portion of the 2010 district court claim construction opinion attached as
"Exhibit B" to Appellants' Appeal Brief is relevant to the issues before us,
Appellants also fail to explain why this opinion is of even persuasive value.
The referenced district court opinion purports to construe terms of three
issued patents whose relationship to the present application is never
explained by Appellants. And, in any event, a claim construed according to
the standard for claim construction in courts, which gives claims their
"ordinary meaning ... as understood by a person of skill in the art," Phillips
v. AWH Corp., 415 F.3d 1303, 1314 (Fed. Cir. 2005), is not necessarily
coextensive with a claim construed according to the "broadest reasonable
interpretation" standard we are bound to apply. Cf Cuozzo Speed Techs.
LLCv. Lee, 136 S. Ct. 2131, 2146 (2016) (acknowledging "possibility of
inconsistent results" as between claim construction before the Board and
before a district court).
For the foregoing reasons, we are unpersuaded of error in the
Examiner's finding Gregg discloses the limitations of claim 38. We,
therefore, sustain the Examiner's rejection of claim 38, as well as claims 39-
67, which are not argued separately.
7
Appeal2015-005869
Application 14/294,871
DECISION
For the above reasons, the Examiner's rejections of claims 38---67 are
affirmed.
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
8