Ex Parte Koch et al

Patent Trial and Appeal Board

Jul 25, 2018

13197669 (P.T.A.B. Jul. 25, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/197,669 08/03/2011
26379 7590 07/27/2018
DLA PIPER LLP (US )
2000 UNIVERSITY A VENUE
EAST PALO ALTO, CA 94303-2248
FIRST NAMED INVENTOR
Peter Koch
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.
384948-991101 6253
EXAMINER
GARG, YOGESH C
ART UNIT PAPER NUMBER
3625
NOTIFICATION DATE DELIVERY MODE
07/27/2018 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):
PatentDocketing US-PaloAlto@dlapiper.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PETER KOCH AND DAVID TSO
Appeal2017-009025
Application 13/197,669 1
Technology Center 3600
Before MAHSHID D. SAADAT, ALLEN R. MacDONALD, and
JOHN P. PINKERTON, Administrative Patent Judges.
SAADAT, Administrative Patent Judge.
DECISION ON APPEAL
Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1-26. 3 We have jurisdiction under
35 U.S.C. § 6(b).
1 Appeal 2017-007780 (Application 13/659,756) is related to this appeal.
This appeal and its related appeal are directed to the same underlying
inventions and issues. These appeals are decided concurrently.
2 According to Appellants, the real party in interest is Balluun Management
AG. App. Br. 1.
3 Appellants indicate they are unaware of any other related appeals. See
App. Br. 1. However, Appeal 2017-007780 (Application 13/659,756) is
related to this appeal. See 37 C.F.R. § 41.37(c)(ii). We respectfully request
Appellants and Appellants' counsel review pending and future proceedings
before the Board and ensure that all related appeals are identified.
Appeal2017-009025
Application 13/197,669
We affirm.
STATEMENT OF THE CASE
Appellants' invention relates to a system and method of a business to
business (B2B) marketplace and social networking in the B2B marketplace.
Spec. 1 :7-8. Exemplary claim 1 under appeal reads as follows:
1. A social business to business marketplace system,
compnsmg:
a computer having a marketplace for at least one seller and
at least one buyer, the marketplace having a store front for each
seller, a shopping cart for each buyer at each the storefront for
each seller, an order management unit that manages orders
submitted using the shopping cart and a payment management
unit that manages the payment for orders to facilitate a
transaction between a buyer and a seller who are users of the
marketplace;
the computer having a social feed system, integrated into
the marketplace, that provides company walls, employee walls,
partner walls and private messaging and automatically generates
an opportunity social feed to the seller when an item is placed
into the shopping cart by a buyer so that the seller is able to
communicate with the buyer about the item; automatically
generates a order management social feed to the seller when the
buyer submits a completed order for the item and automatically
generates a purchase social feed to the seller when the buyer has
purchased the item; and
wherein the opportunity social feed, the order
management social feed and the purchase social feed permit the
buyer and seller to sends feeds to each other during the
transaction.
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Application 13/197,669
REFERENCES and REJECTI0NS 4
Claims 1, 2, 4--16, and 18-26 stand rejected under 35 U.S.C. § I03(a)
as unpatentable over Leff et al. (US 2008/0228598 Al; published Sept. 18,
2008) ("Leff') and Hemiak et al. (US 2008/0177641 Al; published July 24,
2008) ("Hemiak"). See Final Act. 19-27.
Claims 3 and 17 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Leff, Hemiak, and Deacon et al. (US 2009/0192871 Al;
published July 30, 2009) ("Deacon"). See Final Act. 27-28.
Claims 15-26 are provisionally rejected under 35 U.S.C. § 101 as
claiming the same invention as that of claims 15-26 of co-pending
Application No. 13/659,756. See Final Act. 16-17.
Claims 1-14 are provisionally rejected on the ground of non-statutory
double patenting as being unpatentable over claims 1-14 of co-pending
Application No. 13/659,756. See Final Act. 17-18.
PRINCIPLES OF LAW
The Supreme Court has rejected the rigid requirement of
demonstrating a teaching, suggestion, or motivation in the references to
show obviousness. See KSR Int'! Co., v. Teleflex Co., 550 U.S. 398, 415-16
(2007); see also In re Ethicon, Inc., 844 F.3d 1344, 1350 (Fed. Cir. 2017)
("KSR directs that an explicit teaching, suggestion, or motivation in the
references is not necessary to support a conclusion of obviousness.").
Further, one cannot show non-obviousness by attacking references
individually when the rejection is based on a combination of references. See
4 The rejection of claims 1-26 under 35 U.S.C. § 101 as not being directed
to patent-eligible subject matter was withdrawn. See Ans. 2.
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Application 13/197,669
In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986); see also In re
Keller, 642 F.2d 413,425 (CCPA 1981).
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
arguments (Appeal Brief) that the Examiner has erred. We are unpersuaded
by Appellants' contentions and concur with the findings and conclusions
reached by the Examiner as explained below.
Rejection Under 35 US.C. § 103(a)
Appellants contend the combination of cited references fails to teach
or suggest "a marketplace for at least one seller and at least one buyer, the
marketplace having a store front for each seller, [and] a shopping cart for
each buyer at [each] ... storefront for each seller," as recited in claim 1, and
similarly recited in claim 15. See App. Br. 10, 12. As argued by Appellants,
Leff merely discloses a marketplace for purchase of products or services in
which the marketplace has a business directory and a shopping cart for the
marketplace. See App. Br. 11-12. But, according to Appellants, Leff fails to
teach or suggest the following elements recited in claim 1: (a) a store front
for each seller; and (b) a shopping cart for each buyer at each store front for
each seller. See App. Br. 11-12.
We are not persuaded by Appellants' contention. Contrary to
Appellants' argument, Leff teaches that the marketplace includes a webpage
for displaying a plurality of business members on an online business
directory, where the web page includes section icons that allow a user to
view information about a business in a window of the page. See Final
Act. 19-20 (citing Leff,I 42); see also Ans. 3. Consistent with the
Examiner's findings, Appellants' Specification does not define or limit the
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Application 13/197,669
claimed "store front" in a manner that distinguishes the claimed "store front"
from Leff s business member webpage. See Ans. 3. Further, Leff teaches
that when a user selects a business, a new page is displayed with content
appurtenant to the business, where the new page includes a shopping-cart
icon for a user to select a quantity of a product offered by the business
member, and to take steps to purchase the product through a checkout
procedure. See Final Act. 20 ( citing Leff ,r 4 7); see also Ans. 3. Similar to
the claimed "store front," Appellants' Specification does not define or limit
the claimed "shopping cart" in a manner that distinguishes the claimed
"shopping cart" from Leff' s shopping cart icon. See Ans. 3. Thus, Leff
teaches or suggests the claimed "store front for each seller", and the claimed
"shopping cart for each buyer at each storefront for each seller."
Appellants also contend the combination of cited references fails to
teach or suggest "a social feed system ... that ... automatically generates an
opportunity social feed to [a] seller when an item is placed into [a] shopping
cart by a buyer so that the seller is able to communicate with the buyer about
the item; automatically generates [an] order management social feed to the
seller when the buyer submits a completed order for the item and
automatically generates a purchase social feed to the seller when the buyer
has purchased the item," as recited in claim 1, and similarly recited in claim
15. See App. Br. 11-13. Appellants further argue Streibinger merely
discloses a system for search queries and advertising that uses a social graph,
and therefore fails to teach or suggest the claimed "social feed system." See
App. Br. 11, 13.
We are not persuaded by this contention either. We agree with the
Examiner that Appellants' argument is not relevant to the current rejection
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because the argument is not directed to the combination of Leff and Hemiak
as applied by the Examiner in rejecting claims 1 and 15. See Ans. 3--4
(citing Final Act. 20-22); see also Final Act. 19.
No separate arguments are presented for the remaining dependent
claims. See App. Br. 13. Therefore, we are not persuaded that the Examiner
erred in finding claims 1-26 unpatentable in light of the cited prior art
references. Accordingly, we sustain the rejection of claims 1-26 under
35 U.S.C. § 103(a).
Double Patenting Rejections
Appellants have not identified any errors in the Examiner's findings
regarding either the statutory double patenting rejection under
35 U.S.C. § 101 or the non-statutory double patenting rejection. See Ans. 3.
"If an appellant fails to present arguments on a particular issue - or more
broadly, on a particular rejection-the Board will not, as a general matter,
unilaterally review those uncontested aspects of the rejection." Ex parte
Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential). Accordingly, we
summarily affirm the aforementioned double patenting rejections.
DECISION
We affirm the Examiner's rejection of claims 1-26 under
35 U.S.C. § 103(a).
We summarily affirm the Examiner's rejection of claims 15-26 on the
ground of statutory double patenting.
We summarily affirm the Examiner's rejection of claims 1-14 on the
ground of non-statutory double patenting.
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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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