Ex Parte Hurwitz

Board of Patent Appeals and Interferences

Oct 29, 2003

09481740 (B.P.A.I. Oct. 29, 2003)

The opinion in support of the decision being entered today was not
written for publication and is not binding precedent of the Board.
Paper No. 12
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte ROGER A. HURWITZ
____________
Appeal No. 2003-0989
Application No. 09/481,740
____________
ON BRIEF
____________
Before HAIRSTON, BARRETT, and FLEMING, Administrative Patent
Judges.
FLEMING, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the final rejection of
claims 1-26, all the claims pending in the instant application.
Invention
The invention relates to electronic commerce systems and
methods for characterization of the reputations of buyers and
sellers in an electronic commerce system. See page 2 of
Appellant's specification. The invention addresses the problem
of using reputation to establish trust between strangers in a
person-to-person transaction in an electronic commerce system
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without the drawbacks of subjective reputation feedback systems.
The present invention generates objective feedback for
transaction participants by monitoring their actual behavior at a
variety of well-defined points in the transaction, such as
payment and shipping. Timely payments, for example, may upgrade
a buyer's reputation. Delayed shipment of goods, for example,
may downgrade a seller's rating, while prompt shipment may
upgrade a seller's rating. See page 4 of Appellant's
specification. Referring to Figure 1, reputation
characterization system 24 may be coupled to transaction service
intermediary 22 to generate an object reputation of buyer 10 and
seller 12. Reputation characterization system comprises at least
data capture component 26, analysis component 28, reporting
component 30, and reputation profiles database 32. Data capture
component 26 receives notifications from the transaction services
intermediary whenever a notable deadline for some performance
relating to the transaction has been set. For example, once a
transaction has commenced, the seller may be expected to drop off
the merchandise to a shipper within 48 hours. Once the data
capture component receives the subsequent notification from the
transaction services intermediary that the merchandise has in
fact been dropped off by the seller and is now in the hands of
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the shipper, the data capture component may pass this and other
information to the analysis component via the reputation profiles
database 32. See page 6 and 7 of Appellant's specification.
Independent claim 1 is representative of the Appellant's
claimed invention and is reproduced as follows:
1. A method of facilitating transactions in a person-to-person
electronic commerce system comprising:
receiving a notification of a deadline relating to a
transaction event;
receiving a notification of the transaction event occurring
corresponding to the deadline; and
building an objective reputation profile of a transaction
participant by an objective third party participating in
fulfillment of the transaction based at least in part on the
notifications.
References
The references relied on by the Examiner are as follows:
Feezell et al. (Feezell) 6,253,189 Jun. 26, 2001
(filed Sep. 15, 1997)
The Internet Archive: Wayback machine. http://www.archive.org/
(2002). Retrieved 12 May 2002 [online].
(Ebay Online Marketplace)
Rejection at Issue
Claims 1-26 stand rejected under 35 U.S.C. § 103 as being
obvious over Ebay Online Auction Marketplace in view of Feezell.
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OPINION
With full consideration being given to the subject matter on
appeal, the Examiner's rejection and the arguments of Appellant
and the Examiner, for the reasons stated infra, we reverse the
Examiner's rejection of claims 1-26 under 35 U.S.C. § 103.
In rejecting claims under 35 U.S.C. § 103, the Examiner
bears the initial burden of establishing a prima facie case of
obviousness. In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443,
1444 (Fed. Cir. 1992). See also In re Piasecki, 745 F.2d 1468,
1472, 223 USPQ 785, 788 (Fed. Cir. 1984). The Examiner can
satisfy this burden by showing that some objective teaching in
the prior art or knowledge generally available to one of ordinary
skill in the art suggests the claimed subject matter. In re
Fine, 837 F.2d 1071, 1074, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988).
Only if this initial burden is met does the burden of coming
forward with evidence or argument shift to the Appellants.
Oetiker, 977 F.2d at 1445, 24 USPQ2d at 1444. See also Piasecki,
745 F.2d at 1472, 223 USPQ at 788.
An obviousness analysis commences with a review and
consideration of all the pertinent evidence and arguments. "In
reviewing the [E]xaminer's decision on appeal, the Board must
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necessarily weigh all of the evidence and argument." In re
Oetiker, 977 F.2d at 1445, 24 USPQ2d at 1444. "[T]he Board must
not only assure that the requisite findings are made, based on
evidence of record, but must also explain the reasoning by which
the findings are deemed to support the agency's conclusion." In
re Lee, 277 F.3d 1338, 1344, 61 USPQ2d 143, 1434 (Fed. Cir.
2002).
Appellant argues that independent claims 1, 6 and 11 require
that an objective reputation profile be built based at least in
part on notifications (e.g., what actually happened during the
fulfillment of the transaction, not what people said happened and
how they felt about it). Appellant argues that the specification
is clear that objective reputation profile is very different than
subjective feedback and that the present invention is focusing on
providing objective feedback. Appellant argues that Ebay
provides only subjective feedback as an aggregation of people's
opinion affirmatively submitted to Ebay. Ebay does not include a
trusted intermediary to automatically generate an objective
reputation profile based on what actually happened in various
transactions. Appellant further argues that Feezell only gathers
data about items available for purchase by a buyer. The data
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gathered has nothing to do with reputations of buyers and sellers
as determined by actual transaction participant behavior in
previous transactions. See page 8 of Appellant's brief. We note
that Appellant's independent claim 1 recites "building an
objective reputation profile of a transaction participant by an
objective third party participating in fulfillment of the
transaction based at least in part on the notifications." We
note that independent claims 6 and 11 have similar language.
The Examiner states that Ebay does not specifically disclose
an objective third party conducting the feedback profiling. See
page 4 of the answer. The Examiner argues that third party
groups routinely gather data regarding the conduct of buyers and
sellers and provide the data to new customers as an indication of
the validity and creditability of the institution. The Examiner
argues that such examples include J.D. Power and Associates,
Underwriter's Laboratories, ABET, etc. See page 5 of the answer.
The Federal Circuit reviews the Board's ultimate conclusion
of obviousness without deference, and the Board's underlying
factual determinations for substantial evidence. In re Huston,
308 F.3d 1267, 1276, 64 USPQ2d 1801, 1806 (Fed. Cir. 2002) citing
In re Gartside, 203 F.3d 1305, 1316, 53 USPQ2d 1769, 1776 (Fed.
Cir. 2000). "The Board's findings must extend to all material
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facts and must be documented on the record, lest the 'haze of so-
called expertise' acquire insulation from accountability." In re
Lee, 277 F.3d 1338, 1345, 61 USPQ2d 1430, 1435 (Fed. Cir. 2002).
The Examiner has not provided evidence of third party groups
routinely gathering data regarding contact of buyers and sellers.
Upon our review of Ebay Auction Marketplace, we fail to find that
Ebay Auction Marketplace teaches building an objective reputation
profile of a transaction participant by an objective third party
participating in fulfillment of the transaction based at least in
part on the notifications as recited in Appellant's claims.
Furthermore, we fail to find that Feezell teaches this limitation
as well. Feezell only gathers data about advertising time slots
which are available for purchase by a buyer. Feezell fails to
teach gathering data to build an objective reputation profile of
a transaction participant by an objective third party
participating in fulfillment of the transaction based at least in
part on notifications as claimed by Appellant.
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In view of the foregoing, we have not sustained the
Examiner's rejection of claims 1-26 under 35 U.S.C. § 103.

REVERSED
KENNETH W. HAIRSTON )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
LEE E. BARRETT ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
MICHAEL R. FLEMING )
Administrative Patent Judge )
MRF/lbg
Appeal No. 2003-0989
Application No. 09/481,740
9
STEVEN P SKABRAT
BLAKELY SOKOLOFF TAYLOR & ZAFMAN LLP
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