Ex Parte Klivington et al

Board of Patent Appeals and Interferences

Dec 21, 2006

10329921 (B.P.A.I. Dec. 21, 2006)

The opinion in support of the decision being entered today
was not written for publication in and is not binding
precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
___________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
___________

Ex parte EVA T. KLIVINGTON and
MARGIT E. KLIVINGTON
___________

Appeal No. 2006-3365
Application No. 10/329,921
Technology Center 3600
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ON BRIEF
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Decided: December 21, 2006
___________

Before CRAWFORD, LEVY, and FETTING, Administrative Patent Judges.
FETTING, Administrative Patent Judge.

DECISION ON APPEAL

This is a decision on appeal under 35 U.S.C. §134 from the examiner's final
rejection of claims and, which are all of the claims pending in this application.

We AFFIRM.
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Appeal Number: 2006-3365
Application Number: 10/329,921

BACKGROUND

The appellants’ invention relates to a real estate business process, and
specifically to a web-based electronic real estate and transaction system and
methods therein that operate to streamline, bundle together and make available
online many aspects, including relevant forms, involved in executing a real estate
transaction. (Spec 1). An understanding of the invention can be derived from a
reading of exemplary claim 1, which is reproduced below.
1. A method of generating on line a contract for a real estate
transaction for a particular real estate property comprising:
collecting, on line and in electronic form, transaction specific
information for a real estate contract including identifying a plurality
of parties and agents involved with the real estate transaction;
providing, in an electronic format, a real estate contract form;
automatically populating, in a computer, the real estate contract form
with the transaction specific information and data in an existing listing
for a particular real estate property;
automatically generating online, in the computer, responsive to
populating the real estate contract form, an electronic file
corresponding to the real estate contract for the real estate transaction;
and
sending concurrently, using a web-based service, a notice of the
generating online the electronic file corresponding to the real estate
contract to at least one of the plurality of parties and agents involved
with the real estate transaction.
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Appeal Number: 2006-3365
Application Number: 10/329,921

PRIOR ART
The prior art references of record relied upon by the examiner in rejecting the
appealed claims are:
Raveis, Jr. US 2001/0047282 A1 Nov. 29, 2001
Broerman US 6,594,633 B1 Jul. 15, 2003
(Jul. 7, 1999)
Virginia Regional Sales Contract, 1999

REJECTIONS
Claims 1 through 10 and 13 through 26 stand rejected under 35 U.S.C. § 103(a)
as obvious over Broerman and Raveis, Jr..
Claims 11 and 12 stand rejected under 35 U.S.C. § 103(a) as obvious over
Broerman, Raveis, Jr. and the Virginia Regional Sales Contract.
Rather than reiterate the conflicting viewpoints advanced by the examiner and
the appellants regarding the above-noted rejections, we make reference to the
examiner's answer (mailed Apr. 28, 2006) for the reasoning in support of the
rejection, and to appellants’ brief (filed Apr. 6, 2006) and reply brief (filed Jul. 6,
2006) for the arguments thereagainst.
OPINION
In reaching our decision in this appeal, we have given careful consideration to
the appellants’ specification and claims, to the applied prior art references, and to
the respective positions articulated by the appellants and the examiner. As a
consequence of our review, we make the determinations that follow.
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Appeal Number: 2006-3365
Application Number: 10/329,921

Claims 1 through 10 and 13 through 26 rejected under 35 U.S.C. § 103(a) as
obvious over Broerman and Raveis, Jr.
We note that the appellants argue these claims as a group. Accordingly, we
select claim 1 as representative of the group.
The examiner applies Broerman for the details of completing a real estate
contract using a computer system and data base and applies Raveis, Jr. for the
specific claim limitation of automatically populating the contract with information
from a real estate listing.
The appellants argue that Broerman fails to show automatically populating the
contract with information from a real estate listing, which the examiner admits, and
then argues that Raveis, Jr. is equally lacking.
To the contrary, according to Raveis, data in a database can be
populated from sources including the MLS, and summary reports of
the database can be prepared. However, there is no discussion of
populating a form, let alone a real estate contract form. Importantly,
there is no discussion in Raveis of populating a real estate contract
form from an existing listing. For example, Raveis paragraphs [0108]
- [0113] discuss how "primary inputs are put into the databases
according to functional requirements, security, business rules and user
actions," with respect to Sale Transactions. (Paragraph [0079].)
Raveis, paragraphs [0204] - [0229] discusses "Reports and Forms,"
such as New Listing Report, Listing Expiration Report, New Sales
Transaction Report, Void Sales Transaction Report, Projected
Closings Report, Closed Sales Transaction Report, Deposit
Verification Report, Agent Transaction Report, Agent Roster Report,
Agent Goal Analysis Report, Contact Report, Trustee Account Detail
Report, and Pending Referral Report. Nothing in Raveis teaches or
suggests populating a particular form from an existing listing.

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Appeal Number: 2006-3365
Application Number: 10/329,921
Therefore, Broerman and/or Raevis, alone or in combination, fails to
teach or suggest automatically populating, in a computer, the real
estate contract form with both the transaction specification
information and data in an existing listing for a particular real estate
property. Moreover, Broerman and/or Raevis fails to teach or suggest
automatically generating online, in the computer, responsive to
populating the real estate contract form, an electronic file
corresponding to the real estate contract for the real estate transaction.
(Answer 7-8).
The examiner responds
In response to applicant's argument that Raveis fails to teach or
suggest "populating a real estate contract form from an existing
listing" (Brief; page 7), it is noted that Raveis explicitly teach said
feature. Specifically, Raveis teaches:
"Still further, it is envisioned that standard development software
tools will be utilized in connection with the subject system and
method .... Microsoft Word 97 or an equivalent thereof is used for
development of some form templates such as contracts within the
application." [0042].
"Further examples include Adobe Acrobat version 3.0.1 and the
Adobe PDF Writer version 3.0.2 for creating PDF files for the form
templates. The Acrobat Forms Author Plug-In version 3.5 is used in
concert with Acrobat Exchange version 3.0 to create PDF files with
form fields which are then populated with data retrieved from the
database. Adobe Acrobat Reader version 3.0.1 is used for viewing the
final form via the application." [0043].
Further, Raveis defines various databases used, including:
"Listing databases preferably relate to listings, listing agent, listing
MLS, lock boxes, MLS, MLS data, open house requests, picture
references, garages, new home referral fees and showing
information." [0071].
(Answer 11-12).

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Appeal Number: 2006-3365
Application Number: 10/329,921
The appellants then respond
Based on Raveis' use of standard software tools to develop form
templates, paragraphs [0042] and [0043], and Ravels’ use of databases
relating to "'listings ... MLS, MLS data," paragraph [0071], the
examiner argues that Ravels specifically teaches "populating a real
estate contract form from an existing listing" for a particular real
estate property. The reasoning relies on the improper application of
hindsight. As stated in W.L. Gore & Associates, Inc. v. Garlock, Inc.,
721 F.2d 1540, 220 USPQ 303 (Fed.Cir.1983), "[tie imbue one of
ordinary skill in the art with knowledge of the invention in suit, when
no prior art reference or references of record convey or suggest that
knowledge, is to fall victim to the insidious effect of a hindsight
syndrome wherein that which only the inventor taught is used against
its teacher." Here, the only reason to combine the teachings of the
applied references in the manner proposed by the examiner results
from a review of appellants' disclosure and the application of
impermissible hindsight.
Raveis’ ability to create a generic form with data populated from an
unspecified database, together with Raveis' discussion era multiplicity
of databases, fails to teach or suggest specifically "populating a real
estate contract from an existing listing."
(Reply Br. 4).
We note that Raveis actually states
[0109] Sale Transactions are contracts for the proprietor customers to
purchase homes listed by the proprietor or other agencies. Sale
transactions may or may not be associated with a proprietor listing.
Commissions are a significant part of the sale transaction.

[0110] The business rules for sale transaction will be as follows.
Property Address including: address, city, state and zip code, Valid
MLS # (or "None" for a non-MLS entry), at least one buyer but not
more than five (must be a valid contact) and at least one seller but not
more than five (must be a valid contact) must be entered to save a sale
transaction. Listing Agency values can come from the MLS, can be
entered by hand, or in the case of a proprietor listing are taken from
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Appeal Number: 2006-3365
Application Number: 10/329,921
the Listing Transactions. Selling Agency values are manually entered,
or in the case of a proprietor sale they are the current office. Listing
Agents equal at least one agent but no more than five. If the
circumstances are a proprietor listing, then the associated listing is
default information. If the circumstances are a co-broker listing, at
least one listing agent with complete information must be provided.
There must be at least one Selling Agent but no more than five. If sold
by a proprietor agent, selecting from a list of agents defaults this
information. If a co-broker, must select at least one listing agent and
provide complete information including Contract Date, Contract Price
rounded to the nearest dollar and greater than zero, Listing and Selling
Share of commissions, Listing Type and Projected closing date.

[0111] The following fields are autopopulated from the MLS data:
MLS Status, Expiration Date, Property Type, Sub Division Name,
Sale ID, Created By, Created Date, Last Changed By, and Last
Changed Date. A listing agent can be listed only once on the Sale. A
selling agent can be listed only once on the sale. A seller and buyer
can each be listed only once on the sale. Sale transactions cannot be
deleted, but the status can be changed. When a sale transaction is
created, if it is linked to a Listing record, the status of the listing
record changes from Open to Under Contract. If the sale transaction is
canceled, the corresponding listings status is changed to open.
(Paragraphs 0109 through 111).

On its face, this teaches that sales contract fields are automatically populated
by MLS (Multiple Listing Service) data. Whether the sales contract is in the form
of a database or form is purely a matter of semantics and is a difference without a
distinction in the database arts, because forms are merely a characterization of
different ways of displaying the exact same data that is in the database, which
database management systems (DBMS) routinely provide as inherent functions for
ease of display. We note that most widely used database management systems,
such as Microsoft Access and Corel Paradox, provide this inherently within their
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Appeal Number: 2006-3365
Application Number: 10/329,921
standard suite of menu options. Thus, when populating the database, the DBMS is
inherently populating the forms, including sales contract forms, and vice versa. To
the extent the appellants are arguing that a person of ordinary skill in the art would
not know or be motivated to push a form view menu button that is standard within
such database suites, we must respond that database programmers have both the
motivation and technical capacity to perform much more difficult and targeted
views of the data when creating forms. To tie down any remaining question of
motivation, as the appellants acknowledged, supra., Raveis, Jr. at paragraphs 224-
229 directly teach creating forms to present contracts.
Therefore, we find the appellants’ argument to be unpersuasive. Accordingly
we sustain the examiner's rejection of claims 1 through 10 and 13 through 26 under
35 U.S.C. § 103(a) as obvious over Broerman and Raveis, Jr.
Claims 11 and 12 rejected under 35 U.S.C. § 103(a) as obvious over Broerman,
Raveis, Jr. and the Virginia Regional Sales Contract.
The appellants argue
Broerman fails to teach automatically creating additional electronic
files in response to the modifying. The portion of Broerman cited as
teaching the automatic creation of additional files in response to the
modifying states "Generation of the electronic real estate documents
(e.g., electronic purchase contract 96 and electronic disclosure
document 98) shown in FIGS. 3, 5B and 5C may be accomplished by
storing a word processing template on a computer in the real estate
computer network 10. Information supplied by the buyer party 13 or
the seller party 12 may be merged with the word processing template
and stored as a document or the mutable terms may be stored
separately as a record in a database." (Broerman Col. 1, lines 44 - 52.)
Clearly, Broerman fails to teach or suggest automatically creating any
additional electronic file in response to the modifying. Building on
this lack of a teaching, the examiner argues that it would be obvious to
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Appeal Number: 2006-3365
Application Number: 10/329,921
modify Broerman so that the additional electronic file is an addendum
or disclaimer. The office action admits that Broerman and Raveis fail
to teach that the form is an addendum or disclaimer, and cites Virginia
Regional Sales Contract to remedy these deficiencies.
Even if Broerman, Raveis and Virginia Regional Sales Contract are
combined and modified as proposed, the proposed
combination/modification fails to provide for the additional electronic
file (addendum or disclaimer) being created automatically in response
to the modifying.
(Br. 14-15).
As the examiner argues (Answer 14-15), Broerman (col. 11 lines 43-55)
teaches merging mutable terms with the contract, with standard word processing
merge operations, which is an automatic creation of a new version of the contract
which is an online additional file corresponding to the existing listing and the
mutable terms, e.g. addendum or disclosure, as claimed. Further, Raveis, Jr.
teaches that
It is also envisioned that a plurality of forms can also be generated by
the subject system and method. In one embodiment, the standard
forms tool is a combination of Caere's OmniForm version 3.0,
Microsoft's Word 97 and Adobe's Acrobat version 3.0.1. Preferably,
form templates are constructed for all forms. The summary data
sought will determine the list of available forms. In one embodiment,
the following forms are provided: Open Buyer or Tenant
Authorization; Exclusive Right to Represent Buyer to Tenant; Dual
Agency Consent Agree; Dual Agency/Single Agent Consent;
Standard Form Real Estate Contract; Release and Hold Harmless;
Exclusive Right to Sell Listing Contract; Exclusive Right to Lease
Listing Contract; Exclusive Agency Listing Contract; Sign Request;
Exceptional Properties Division Listing Information; State
Department of Consumer Protection--Residential Property Condition
Disclosure Report; Rider--Real Estate Contract; Addendum to Sales
Contract; Order Entry Form; New Listing Input Form; Property Status
Change Form; and Disclosure Format for Target Housing Sales--
Disclosure of Information on Lead-Based Paint.
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Appeal Number: 2006-3365
Application Number: 10/329,921
(Paragraph 221).
Clearly Raveis, Jr. teaches creating additional contract files automatically by
operation of the system. Therefore, we find that both Raveis, Jr. and Broerman
suggest the limitation of adding files automatically for contract addenda or
disclaimers, and find appellants’ argument to be unpersuasive.
Accordingly we sustain the examiner's rejection of claims 11 and 12 under
35 U.S.C. § 103(a) as obvious over Broerman, Raveis, Jr. and the Virginia
Regional Sales Contract.
CONCLUSION
To summarize,
• The rejection of claims 1 through 10 and 13 through 26 under 35 U.S.C.
§ 103(a) as obvious over Broerman and Raveis, Jr. is sustained.
• The rejection of claims 11 and 12 under 35 U.S.C. § 103(a) as obvious over
Broerman, Raveis, Jr. and the Virginia Regional Sales Contract is sustained.

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Appeal Number: 2006-3365
Application Number: 10/329,921
No time period for taking any subsequent action in connection with this appeal
may be extended under 37 CFR § 1.136(a).
AFFIRMED

MURRIEL E. CRAWFORD )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
STUART S. LEVY ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
ANTON W. FETTING )
Administrative Patent Judge )

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Appeal Number: 2006-3365
Application Number: 10/329,921
POSZ LAW GROUP, PLC
12040 SOUTH LAKES DRIVE
SUITE 101
RESTON, VA 20191

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