11058565 (P.T.A.B. Feb. 28, 2014)

Ex Parte Hatch

Patent Trial and Appeal BoardFeb 28, 2014

11058565 (P.T.A.B. Feb. 28, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 11/058,565 02/15/2005 Ryan D. Hatch 048591-0101 8714 26371 7590 03/03/2014 FOLEY & LARDNER LLP 3000 K STREET N.W. SUITE 600 WASHINGTON, DC 20007-5109 EXAMINER WON, MICHAEL YOUNG ART UNIT PAPER NUMBER 2449 MAIL DATE DELIVERY MODE 03/03/2014 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte RYAN D. HATCH ____________ Appeal 2011-013160 Application 11/058,565 Technology Center 2400 ____________ Before JAMES P. CALVE, ANNETTE R. REIMERS and JILL D. HILL, Administrative Patent Judges. REIMERS, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-013160 Application 11/058,565 2 STATEMENT OF THE CASE Ryan D. Hatch (Appellant) appeals under 35 U.S.C. § 134(a) from the Examiner’s decision to reject under 35 U.S.C. § 103(a) claims 1-7 and 23-37 as unpatentable over Dietz (US 2004/0102197 A1; pub. May 27, 2004) and Barnes, Jr. (US 7,487,112 B2; iss. Feb. 3, 2009)1. Claims 8-22 have been canceled. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. CLAIMED SUBJECT MATTER The claimed subject matter relates to “a method . . . for processing website requests in order to provide local geographical management of web page content.” Spec. para. [0001]; fig. 1. Claims 1, 23, 30 and 37 are independent. Claim 1 is illustrative of the claimed subject matter and recites: 1. A machine-readable non-transitory medium, the machine-readable non-transitory medium comprising machine-readable program code for causing, when executed, one or more processors to perform the following method steps: receiving via the one or more processors a website request regarding a website, wherein the website request is received by a network device in communication with a mobile device transmitting via the one or more processors the website request from the network device to a server associated with the website; receiving via the one or more processors a web page from the server associated with the website in response to the website request, wherein the web page is received by the network device; 1 Hereinafter “Barnes.” Appeal 2011-013160 Application 11/058,565 3 determining via the one or more processors whether a geographic location of the mobile device and a geographic location of an occurring sporting event are within a predetermined range of each other; modifying the web page within the network device to include a sporting event content from the occurring sport event based on the geographic location of the mobile device and the geographic location of the occurring sporting event when the one or more processors determines that the geographic location of the mobile device and the geographic location of the occurring sporting event are within a predetermined range of each other; and transmitting a modified web page from the network device to the mobile device. ANALYSIS Appellant argues claims 1-7 as Group 1, claims 23-29 as Group 2, claims 30-36 as Group 3 and claim 37 as Group 4. See Br. 9. Appellant states that (1) “[c]laims 1-7 are grouped together into Group 1 and essentially stand together or fall together and are therefore grouped together. Independent [c]laim 1 is the representative claim of Group 1”; (2) “[c]laims 23-29 are grouped together into Group 2 and essentially stand together or fall together and are therefore grouped together. Independent [c]laim 23 is the representative claim of Group 2”; (3) “[c]laims 30-36 are grouped together into Group 3 and essentially stand together or fall together and are therefore grouped together. Independent [c]laim 30 is the representative claim of Group 3”; and (4) “[c]laim 37 is Group 4.” Id. We address the respective groups below. Appeal 2011-013160 Application 11/058,565 4 Group 1 Independent claim 1 recites a method including the step: modifying the web page within the network device to include a sporting event content from the occurring sport event based on the geographic location of the mobile device and the geographic location of the occurring sporting event when the one or more processors determines that the geographic location of the mobile device and the geographic location of the occurring sporting event are within a predetermined range of each other. Br. 28, Clms. App’x. The Examiner found that Dietz discloses the method of claim 1 except “Dietz does not explicitly teach the event content is a sporting event and that the content is an occurring sport event.” See Ans. 5- 6. The Examiner found that Barnes discloses “a sporting event and an occurring sport event.” Id. at 6-7 (citing Barnes, col. 10, ll. 61-65, col.19, ll. 6-10, col. 62, ll. 20-30 and col. 69, ll. 17-21). The Examiner concluded that [i]t would have been obvious to a person of ordinary skill in the art at the time the invention was made to modify the system of Dietz in view of Barnes so that the event content is an occurring sport event. One would be motivated to do so because these differences are only found in the nonfunctional descriptive material and are not functionally involved in the steps recited. The modifying of the web page within the network device will be performed regardless of the data content. Furthermore, Dietz teaches any location- specific content can be applied (see Dietz: page 3, paragraph [0028]: “the ability to serve targeted advertisements or other page content as a function of the requesting client's location. One of ordinary Appeal 2011-013160 Application 11/058,565 5 skill will appreciate that the types of location- specific page content may be quite varied ... the web page may include community service information, emergency broadcasts, local weather and news information, and the like”). Ans. 7. Appellant contends that Dietz discloses storing predetermined information and then presenting this predetermined information. This predetermined information may be an advertisement. (Dietz, para. [0009]). In contrast, independent Claim 1 recites utilizing sporting event content from the occurring sport event. Applicant respectfully submits that disclosing advertising data is materially different than the claimed subject matter of utilizing sporting event content from the occurring sport event. Br. 13. Appellant’s arguments are not persuasive. Appellant has not explained how disclosing advertising data, as disclosed in Dietz, is “materially different” than the claimed subject matter of utilizing sporting event content from the occurring sport event. Nor has Appellant persuaded us of error in the Examiner’s findings that Dietz teaches that the location- specific page element can be any element to include community service information, emergency broadcasts, local weather, news information, and the like. See Ans. 7, 18. Further, the Examiner relied on Barnes for the disclosure of “a sporting event and an occurring sport event.” See Ans. 6, 18. Appellant further contends that Dietz fails to teach or suggest that “the geographic location of the mobile device and the geographic location of the occurring sporting event are within a predetermined range of each other.” Appeal 2011-013160 Application 11/058,565 6 Br. 13 (emphasis omitted). In response to Appellant’s argument, the Examiner found that Dietz . . . teaches if the location-specific page element is not available at the server, the routine identifies the URL of the page element and uses this page element to build the requested page (see page 3, paragraph [0026]). Therefore, to assert that Dietz’s system only works with static content is improper. Dietz teaches all the limitations . . . except that the content element is an occurring sporting event . . . . Barnes teaches the missing limitation. Furthermore, Dietz teaches that the location- specific page element can be any element and not a limitation of the present invention (see page 3, paragraph [0028]). Ans. 18. Appellant has not provided any evidence of error or persuasive argument regarding the Examiner’s analysis and conclusion regarding Dietz’s disclosure. Appellant also contends that Barnes is materially different then the claimed subject matter for at least three reasons[.] First, Barnes requires the user to proactively elect to complete an action. Second, Barnes does not delivery [sic] and/or receive any occurring sporting event content. Third, even if the transmission of billing data in Barnes was incorrectly considered to be sporting event content this transmission is still not based on the geographic location of the mobile device being within a predetermined range of the geographic location of the occurring sporting event. Br. 14. Appellant’s arguments are not persuasive. First, we agree with the Examiner that Appellant’s arguments appear to be individual attacks on the Appeal 2011-013160 Application 11/058,565 7 references rather than a challenge to the Examiner’s combination of the teachings of the Dietz and Barnes references. See Ans. 19; See also In re Merck & Co., 800 F.2d 1091 (Fed. Cir. 1986); In re Keller, 642 F.2d 413 (CCPA 1981) (one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references). As noted above, the Examiner relied on Barnes merely for the disclosure of “a sporting event and an occurring sport event.” See Ans. 6, 18. Second, we further agree with the Examiner that the language in claim 1 directed to the event content being an occurring sport event is “nonfunctional descriptive material and [is] not functionally involved in the steps recited. The modifying of the web page within the network device will be performed regardless of the data content.” See Ans. 7. Here, no new and unobvious functional relationship appears to exist between the event content2 (i.e., an occurring sport event) and its substrate (i.e., the network device). Thus, Appellant has not established how the event content serves to patentably distinguish the invention from the prior art. See, In re Ngai, 367 F.3d 1336, 1339 (Fed. Cir. 2004); In re Gulack, 703 F.2d 1381, 1385-86 (Fed. Cir. 2 Appellant’s Specification describes that “the web page or pages . . . include content that is associated with the approximate geographic area 512 having access to LAN 504. For example, the content may be information or an advertisement provided by an entity located in approximate geographic area 512. According to an exemplary embodiment, LAN [Local Area Network] 504 is accessible to users in the approximate geographic area 512 of sports facility 530, such as an auto or horse racing track, football or baseball stadium, etc. In this embodiment, the web pages . . . include information or advertisements targeted to users of LAN 504, such as information on wagering, statistics on competitors or teams, scores and highlights, live video feeds and instant replays, or advertisements and information for various concessions available.” Spec. para. [0052]. Appeal 2011-013160 Application 11/058,565 8 1983). Further, to the extent that the Barnes patent is even necessary to establish a prima facie case of obviousness (see discussion above regarding non-functional descriptive material), the Examiner found that Barnes teaches throughout, that the content element can be live, real-time events including occurring sport events (see col. 10, lines 61-65: “The data that is received live may be transmitted from live events from the source”; col.19, line 6- 10: “Live data is transmitted along with data”; col.62, lines 20-30: “display on the drivers side ... and other kinds of data (i.e., text, maps, emails, web pages, stock quotes, sports scores, [etc.].)”; and col.69, lines 17-21: “when the user arrives at an area such as a facility ... stadium, sports center ...”). Ans. 19. Appellant does not contest the Examiner’s findings and conclusions of obviousness regarding the combined teachings of Dietz and Barnes. See Br. 13-14. As such, Appellant’s arguments do not apprise us of any error in the Examiner’s rejection. Accordingly, for the foregoing reasons, the Examiner’s rejection of claim 1 and claims 2-7, which fall with claim 1, as unpatentable over Dietz and Barnes is sustained. Groups 2-4 Appellant presents arguments similar to those presented above in reference to Dietz (see Br. 17, 21, 24). As discussed above in reference to claim 1, these arguments are not persuasive. Further, as discussed above, no new and unobvious functional relationship appears to exist between the event content (i.e., property content (claims 23 and 37)3 or site content 3 Independent claim 37 calls for “wherein the property content is a listing price.” Br. 32, Clms. App’x. Appellant contends that “Barnes does not Appeal 2011-013160 Application 11/058,565 9 (claim 23)) and its substrate (i.e., the network device). As such, the event content does not serve to patentably distinguish the invention from the prior art. Moreover, to the extent that the Barnes patent is even necessary to establish a prima facie case of obviousness, the Examiner found that Barnes discloses property content and site content. See Ans. 9, 11, 13, 20-21, 23 (citing Barnes, col. 3, l. 66; col. 4, ll. 29-36; col. 55, ll. 41-45). Appellant has not established why the Examiner’s citation to the Dietz and Barnes references in combination amounts to error on the Examiner’s part. Accordingly, for the foregoing reasons, the Examiner’s rejection of (1) claim 23 and claims 24-29, which fall with claim 23 (Group 2); (2) claim 30 and claims 31-36, which fall with claim 30 (Group 3); and (3) claim 37 (Group 4) as unpatentable over Dietz and Barnes is sustained. DECISION We AFFIRM the decision of the Examiner to reject claims 1-7 and 23-37 as unpatentable over Dietz and Barnes. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Vsh disclose, teach, or suggest a property content which includes a listing price.” Br. 26. As discussed above, the event content does not serve to patentably distinguish the invention from the prior art. Moreover, we note that Barnes discloses that “[t]he vender computer systems (VCSs) receive and process their respective requests, which in this example includes interpreting the request and searching a database for the price of the identified product.” See Barnes, col. 32, ll. 50-53 (emphasis added).