Ex Parte Ferrazzini et al

Patent Trial and Appeal Board

May 27, 2016

12713485 (P.T.A.B. May. 27, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
121713,485 02/26/2010
95866 7590 06/01/2016
Fleit Gibbons Gutman Bongini & Bianco P.L.
551 NW 77th street
Suite 111
Boca Raton, FL 33487
FIRST NAMED INVENTOR
Axel Denis FERRAZZINI
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.
35127-US-PAT 4810
EXAMINER
COULTER, KENNETH R
ART UNIT PAPER NUMBER
2445
NOTIFICATION DATE DELIVERY MODE
06/01/2016 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):
ptoboca@fggbb.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte AXEL DENIS FERRAZZINI,
GAELLE MARTIN-COCHER, and BRIAN McCOLGAN
Appeal2014-009876
Application 12/713,485
Technology Center 2400
Before CARL W. WHITEHEAD JR., MICHAEL J. STRAUSS, and
MICHAEL M. BARRY, Administrative Patent Judges.
STRAUSS, Administrative Patent Judge.
DECISION ON APPEAL
Appeal2014-009876
Application 12/713,485
STATE~vfENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
1, 5, 6, 8-18, and 20-22. Claims 2--4, 7, and 19 are canceled. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.
THE INVENTION
The claims are directed to providing access to a service relating to an
account for an electronic device in a network. Spec., Title. Claim 1,
reproduced below with a disputed limitation emphasized in italics, is
representative of the claimed subject matter:
1. A method for a host device in a network to provide access for
a terminal device to a primary account associated with the host
device, comprising:
receiving at the host device a first request from the
terminal device to create an associated account providing access
to the primary account for the terminal device;
sending a second request to a server in the network to
create the associated account having an account identifier
associated with the primary account; and
sending an application to the terminal device that enables
the terminal device to access the primary account through the
associated account.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Lekutai
Odell
US 2006/0003779 Al
US 2012/0198012 Al
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Jan. 5,2006
Aug. 2, 2012
Appeal2014-009876
Application 12/713,485
REJECTIONS
The Examiner made the following rejections:
Claims 1, 5, 8-14, 16-18, 21, and 22 stand rejected under 35 U.S.C.
§ 102(e) as being anticipated by Odell. Non-Final Act. 3---6.
Claims 6, 15, and 20 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Odell and Lekutai. Non-Final Act. 7-8.
APPELLANTS' CONTENTION
Odell's loading of a software application onto a requestor device does
not send the software anywhere and, therefore, fails to disclose the disputed
limitation of sending an application to the terminal device that enables the
terminal device to access the primary account through the associated
account. App. Br. 4--8.
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
arguments the Examiner has erred. We disagree with Appellants'
conclusions. We adopt as our own (1) the findings and reasons set forth by
the Examiner in the action from which this appeal is taken (Non-Final Act.
3-9) and (2) the reasons set forth by the Examiner in the Examiner's Answer
in response to Appellants' Appeal Brief (Ans. 2-3) and concur with the
conclusions reached by the Examiner. We highlight the following for
emphasis.
Appellants argue "nothing in paragraph [0036] and Figure 1 of Odell
indicates that the 'requestor controller 125' is sent anywhere - in particular
to the 'terminal device' which Examiner appears to compare in reference to
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Appeal2014-009876
Application 12/713,485
Figures 18A and 18B of Odell to either a cell phone or other computer."
App. Br. 7. In response the Examiner finds "[l]oading the software
application onto the requestor device is equivalent to sending it to the
requestor device." Ans. 2.
We agree with the Examiner. As recognized by Appellants, loading
software includes retrieval or procurement of the application. Reply Br. 3.
Furthermore, retrieval includes obtaining a specific requested item by
locating it and returning it to a program. See MICROSOFT COMPUTER
DICTIONARY 452 (5th ed. 2002). Therefore, consistent with Appellants'
proffered definition of the disputed term "send" as "'to cause [an item] to go
or to be carried from one place or person to another"' (Reply Br. 2-3, citing
Merriam-Webster), loading the software includes its retrieval by locating and
returning the software to a program. That is, the program software goes
from one place (e.g., a storage location) to another (e.g., location of the
software that has been loaded for execution) thereby satisfying the
requirement of sending an application to the terminal device and disclosing
the disputed limitation. In finding Appellants' argument unpersuasive, we
note a reference does not have to satisfy an ipsissimis verbis test to disclose
a claimed element. In re Gleave, 560 F.3d 1331, 1334 (Fed. Cir. 2009). See
also Kennametal, Inc. v. Ingersoll Cutting Tool Co., 780 F.3d 1376, 1381
(Fed. Cir. 2015) ("a reference can anticipate a claim even if it 'd[ oes] not
expressly spell out' all the limitations arranged or combined as in the claim,
if a person of skill in the art, reading the reference, would 'at once envisage'
the claimed arrangement or combination.") (quoting In re Petering, 301 F.2d
676, 681 (CCPA 1962)).
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Appeal2014-009876
Application 12/713,485
Appellants further argue the Examiner's Answer is deficient for
failure to comply with the requirements ofMPEP § 1207.02(A)(l)(9)(e).
App. Br. 8. Although Appellants do not assert the alleged deficiency as a
basis for reversal of the rejections, we nonetheless note Appellants'
contention the Answer is deficient is not an appealable issue but rather
should have been addressed by way of a timely filed petition. See 37 C.F.R.
§ 1.181. Furthermore, the cited procedure no longer appears in the current
revision of the MPEP 1 and, even if still applicable in the present appeal,
would not be controlling and, instead we find the Examiner satisfies the
requirements of 37 C.F.R. § 41.39(a).
For the reasons discussed supra, Appellants' contentions are
unpersuasive of Examiner error. Therefore, we sustain the rejection of
independent claim 1under35 U.S.C. § 102(e) as being anticipated by Odell
and, for similar reasons, the rejection of independent claims 11 and 16
which include similar limitations, together with the rejection of dependent
claims 5, 8-10, 12-14, 17, 18, 21, and 22 which are not separately argued.
We further sustain the rejection of dependent claims 6, 15, and 20 under 35
U.S.C. § 103(a) over Odell and Lekutai, as these dependent claims also are
not separately argued.
1 Ninth Edition, revision 07.2015, last revised November 2015.
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Appeal2014-009876
Application 12/713,485
DECISION
The Examiner's decision to reject claims 1, 5, 6, 8-18, and 20-22 is
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
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