Ex Parte Doan

Board of Patent Appeals and Interferences

Dec 18, 2010

10156599 (B.P.A.I. Dec. 18, 2010)

The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte WILLIAM T. DOAN
____________

Appeal 2009-009208
Application 10/156,599
Technology Center 3600
____________

Before ANTON W. FETTING, JOSEPH A. FISCHETTI and THU A.
DANG, Administrative Patent Judges.

FISCHETTI, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134 of the Examiner’s
final rejection of claims 1-3, 5-8 and 10. We have jurisdiction under 35
U.S.C. § 6(b) (2002).

SUMMARY OF DECISION
We AFFIRM.

THE INVENTION
Appellant claims a method and system for taking food orders from
customers located at drive-through or other stations of a restaurant which
enables efficient use of restaurant personnel and floor space. (Specification
¶ [0001])
Claim 1, reproduced below, is representative of the subject matter on
appeal.

Claim 1 (previously presented): A method of obtaining goods
prepared to order at a restaurant/store, comprising the steps of:
establishing a two-way voice communication link between a talk box
of an ordering station of a first restaurant/store physically located at
the first restaurant/store and an offsite human representative of the
restaurant/store situated at a second remote location remote from said
first restaurant/store;
receiving an order for goods verbally communicated by a customer
who is physically located at the first restaurant/store and who uses
said talk box and said two-way voice communication link to verbally
communicate the order for goods to said offsite human representative
at said second remote location;
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establishing a second communication link between an offsite data
entry terminal situated in proximity with said offsite human
representative at said second remote location and an onsite computer-
based sales management system located within the first
restaurant/store for facilitating order entering, processing, and
recording sales of ordered goods within the first restaurant/store;
transmitting information concerning the ordered goods into said onsite
computer- based sales management system via said second
communication link by said offsite human representative at said
second remote location; and preparing and delivering the ordered
goods to the customer and collecting
payment from the customer located at the first restaurant/store based
on the information transmitted by said offsite human representative at
said second remote location.

THE REJECTION
The Examiner relies upon the following as evidence of
unpatentability:
Martinez US 5,168,354 Dec. 1, 1992
Pratt US 2003/0014316 A1 Jan. 16, 2003

The following rejection is before us for review.
The Examiner rejected claims 1-3, 5-8 and 10 under 35 USC §103(a)
as being unpatentable over Martinez in view of Pratt.
ISSUE
Have Appellants shown that the Examiner erred in rejecting claims 1-
3, 5-8 and 10 on appeal as being unpatentable under 35 U.S.C. § 103(a) over
Martinez in view of Pratt on the grounds that a person with ordinary skill in
the art would understand that since Martinez is concerned with encouraging
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and not discouraging human interaction at a remotely monitored terminal,
Martinez does not teach away from Appellant’s claimed method.

FINDINGS OF FACT
We find the following facts by a preponderance of the evidence:
1. Martinez discloses that “[t]here has also been a continuing need
within prior art drive-thru systems for overall improved communications
between the patron and the attendant.” (Col.2, ll. 36-38).
2. Martinez discloses that “[s]ince many of these prior art systems do
not provide visual communication and in particular eye-to-eye visual
communication together with verbal communication, the patron feels that
he/she is not receiving adequate personal attention and service which
discourages many patrons from using such a drive-thru system.” (Col. 2, ll.
42-47).
3. The Specification describes that on-site employees deliver the order
to the vehicle. (Specification 12:¶ [0028]).
4. The Specification describes that “one or more onsite employees can
utilize the existing headsets to listen to the communication between the
customer and offsite employee and take over the order handling
responsibility in the event of a connection interruption or the like.”
(Specification 12:¶ [0026]).
5. The Examiner found that:
Martinez does not specifically recite an employee
at a remote location. Pratt teaches an employee
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computer (paragraph [0036]) in two-way
communication (over the internet- abstract;
paragraphs [0034]-[0037]) with a customer at a
drive-up terminal (figure 1; paragraph [0021]),
wherein the employee is at a location remote from
the establishment associated with said terminal
(paragraph [0035]).
(Answer 4).
6. Pratt discloses that “[a] bank of P/C's and associated attendants can
work from the central monitoring station to communicate with dozens of
remote facilities, providing the human touch to each facility regardless of the
location of the central station and the remote facilities.” (¶ (0010]).
7. Pratt discloses that the video and audio interaction features of the
payment terminal 20 are constantly activated. (¶ [0025]).
8. Pratt discloses the remote attendant “can initiate a signal on the gate
signal line 68 to open the gate mechanism 11….” (¶ (0027]).
9. The Specification states that use of an offsite employee also frees
additional space at the restaurant. (Specification ¶ [0027]).

ANALYSIS
We affirm the rejections of claims 1-3, 5-8 and 10.
Initially, we note that the Appellant argues claims 1-3, 5 and 6
together as a group. Correspondingly, we select representative claim 1 to
decide the appeal of these claims, remaining claims standing or falling with
claim 1.
Appellant argues that:
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… the Martinez et al. patent "teaches away" from
any other positioning of the attendant within the
restaurant remote from the pick-up window 16 and
certainly "teaches away" from an attendant located
remotely relative to the restaurant itself as required
by the method of claim 1 of the present
application. With respect to the attendant located
within the restaurant, Martinez et al. specifically
teach that "such orientation enables the attendant
to efficiently operate".
(Appeal Br. 8).
We are not persuaded by Appellant’s argument here because Martinez
does not actually teach away from every aspect of all drive through
restaurants. See In re Gurley, 27 F.3d at 551 (Fed. Cir. 1994). In fact,
Martinez discloses resolving problems encompassing both on-site and
remotely located attendants. This is because Martinez discloses addressing
the “continuing need within prior art drive-thru systems for overall improved
communications between the patron and the attendant.” (FF 1) In terms of
what the drive up customer perceives, it is transparent to him or her where
the attendant is located because the customer is talking to a machine. Thus,
the element common to both cases is that the drive up customer talks to a
machine and not a human being. We therefore find that since Martinez is
concerned with encouraging and not discouraging a very important aspect of
drive through restaurant ordering, there is no teaching away.
We also are not persuaded by Appellant’s argument to Martinez that
“the attendant responsible for operating the drive-thru system is required to
be positioned within the restaurant adjacent to the pick-up window” (Appeal
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Br. 7) because Appellant’s system still requires a person to deliver the
ordered product to the customer (FF 3). Thus, Appellant’s system does not
reduce the number of people in the work place as Appellant infers. In fact,
Appellant’s Specification describes his method as still using a prior art
system as a back-up wherein on-site employee(s) actually serve to take
orders when they sense a break in communication with the off-site employee
(FF 4).
Similarly, Appellant argues that Pratt teaches away because “[o]nly
when a problem is encountered with the automated system is a remote
attendant contacted. (emphasis original)” (Appeal Br. 9) We are not
persuaded by Appellant’s argument because the Examiner found that Pratt
teaches a remotely located employee computer in two-way communication
with a customer at a drive-up terminal (FF 5). Claim 1 only requires
transmitting information concerning the ordered goods into the onsite
computer-based sales management system via said second communication
link, without a mandate on how many transmissions are made.
Likewise, Appellant further argues with respect to Pratt that “patrons
of fast food restaurants prefer to deal directly with a human order-taker” and
hence the reference “teaches away” (Appeal Br. 10). We disagree with
Appellant because Pratt explicitly addresses dealing directly with a human
agent stating in support of human interaction that the central monitoring
station “communicates with dozens of remote facilities, providing the human
touch to each facility regardless of the location of the central station and the
remote facilities.” (FF 6).
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Appellant next argues that the Examiner’s “rationale for modifying
the process of Martinez et al. in view of Pratt et al., to increase profits by
outsourcing sales related functions, is an unsupported assertion and a mere
conclusory statement.” (Appeal Br. 11).
We disagree with Appellant because the Specification explicitly states
that the use of an offsite employee also frees additional space at the
restaurant (FF 9). We find the Examiner’s reasoning to be rational given
that floor space otherwise reserved for an on-site attendant could then be
used for profit producing items, such as more inventory or equipment.
Appellant argues that the Examiner engaged in hindsight
reconstruction in combining Pratt with Martinez because, inter alia, “Pratt et
al. simply fail to disclose an offsite person dedicated to a specific restaurant
drive through lane for taking all orders of goods and entering all orders of
goods into a computer-based sales management system during normal
operation of the system.” (Appeal Br. 14).
We disagree with Appellant because Pratt explicitly discloses that the
video and audio interaction features of the payment terminal 20 can be
constantly activated (FF 7), and thus are specifically dedicated to addressing
the concerns of the drive up customer.
Appellant’s argument that the attendant in Pratt is used in the event of
trouble shooting rather than taking orders (Appeal Br. 14) is not persuasive
because in effect, Appellant is arguing the content of the transmission which
cannot control this patentability determination. Moreover, if Appellant is
arguing that the frequency of use in the drive though restaurant is greater
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than that of the drive up terminal so as to make such usage in Pratt
inoperable, we find this argument meritless. This is because Appellant’s
Specification fails to disclose how often the restaurant drive through is used
versus walk-in traffic, or forecloses the remote operator from being
connected to other terminals, as in the case in Pratt.
Claims 7, 8, and 10
Claim 7 recites in pertinent part, said second communication link
includes a data communication link which permits said offsite human
representative to transmit data corresponding to the ordered goods to said
onsite computer-based sales management system.
Appellant argues that “the attendant of Martinez et al. is required to be
positioned within the restaurant and the offsite attendant of the tollbooth of
Pratt et al. only deals with trouble shooting issues due to a malfunctioning
tollbooth.” (Appeal Br. 15).
We disagree with Appellant because Pratt explicitly discloses the
remote attendant “can initiate a signal on the gate signal line 68 to open the
gate mechanism 11”. (FF 8). We read the transmitted gate signal in Pratt to
correspond to Appellant’s transmitted data sent to the onsite computer-
based sales management system by Appellant’s attendant since both are
causing a desired action to occur. The argument to Martinez not disclosing
an on-site attendant fails because it is attacking the reference individually
when the rejection is based on the combination of references, and Pratt is
used to disclose an off-site attendant. See In re Keller, 642 F.2d 413 (CCPA
1981); In re Young, 403 F.2d 754 (CCPA 1968).
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CONCLUSION OF LAW
We conclude the Appellants have not shown that the Examiner erred
in rejecting claims 1-3, 5-8 and 10 under 35 USC §103(a) as being
unpatentable over Martinez in view of Pratt.
DECISION
The decision of the Examiner to reject claims 1-3, 5-8 and 10 is sustained.

AFFIRMED

MP

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