Ex Parte Likourezos et al

Patent Trial and Appeal Board

Mar 31, 2014

95001597 (P.T.A.B. Mar. 31, 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.
95/001,597 04/05/2011 George Likourezos 9027.140.IP244 2102
7590 04/01/2014
GEORGE LIKOUREZOS, ESQ.
261 WASHINGTON AVE.
ST. JAMES, NY 11780
EXAMINER
DESAI, RACHNA SINGH
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
04/01/2014 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 PATENT TRIAL AND APPEAL BOARD
____________

EBAY, INC.
Requester and Respondent

v.

XPRT VENTURES, LLC.
Patent Owner and Appellant
____________

Appeal 2013-009578
Reexamination Control 95/001,597
Patent 7,610,244 B2
Technology Center 3900
____________

Before KEVIN F. TURNER, WILLIAM V. SAINDON, and
JENNIFER L. McKEOWN, Administrative Patent Judges.

McKEOWN, Administrative Patent Judge.

DECISION ON APPEAL

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Patent Owner XPRT Ventures, LLC. (“Patent Owner”) appeals under
35 U.S.C. §§ 134(b) and 315(a) the Examiner’s decision to reject claims 1,
3, 4, 6, 8, 11, 15, 19, 21, 28, 32, 34, 43, 47, and 52.
1
Third Party Requestor
eBay, Inc. responds to the Patent Owner’s appeal.
2
We have jurisdiction
under 35 U.S.C. §§ 134(b) and 315(a).
We AFFIRM.

STATEMENT OF THE CASE
United States Patent 7,610,244 B2 (hereinafter the “’244 Patent”),
issued to George Likourezos and Michael Anthony Scaturro on
October 27, 2009, is the subject of the current inter partes reexamination.
The ’244 Patent along with five other patents are the subject of a civil
action in the United States District Court for the District of Delaware, which
is currently stayed. See App. Br. 2.
Additionally, the Board of Patent Appeals and Interferences has
decided appeals during the original prosecution of related patents, US Patent
Nos. 7,483,856 and 7,567,937. See App. Br. 2.

1
See Patent Owner’s Revised Appeal Brief, filed April 1, 2013 (hereinafter
“PO App. Br.”), at 3; Examiner’s Answer, mailed May 15, 2013,
incorporating by reference the Examiner’s Right of Appeal Notice, mailed
October 26, 2012 (hereinafter “RAN”). The Patent Owner also filed a
rebuttal brief. See Patent Owner’s Rebuttal Brief, filed June 20, 2013
(hereinafter “PO Reply Br.”).
2
See Third Party Requestor’s Respondent Brief, filed April 29, 2013
(hereinafter “TPR Resp. Br.”). We further note that Requestor’s Respondent
Brief only includes page numbers (pages i – xv) from the Table of Contents
to the end of the Independent Claims section. We cite to the remaining
pages as page 1 (Summary of the Claims Subject Matter) through page 15
(Conclusion).
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THE INVENTION
The ’244 Patent generally relates to a computerized electronic auction
payment system and method for effecting a real-time payment for an item
sold via an electronic auction web site. ’244 Patent, Abstract and 1:20-26.
Claim 1, which is illustrative of the appealed subject matter, has not
been amended during reexamination and reads as follows:
1. A method for effecting payment for at least one item
offered for auction sale by a seller via an electronic auction web
site and won by a winning bidder, where the electronic auction
web site is accessible by a plurality of users and maintained by
an electronic auction system, the method comprising:
receiving informational data from the plurality of users
via at least one web page accessible via at least one web page of
the electronic auction web site;
creating a plurality of payment accounts configured for
storing funds therein and corresponding to the plurality of users
of the electronic auction web site using the informational data
received via the at least one web page accessible via the at least
one web page of the electronic auction web site, wherein funds
stored within the plurality of payment accounts can be used by
said plurality of users for effecting payment for network
transactions associated with said electronic auction web site;
providing the plurality of users an option to enable an
automatic payment service, wherein the automatic payment
service automatically effects payment after occurrence of a
termination event associated with the network transactions;
linking said plurality of payment accounts to at least one
computing device of the electronic auction system;
displaying a link on the electronic auction web site for
providing said plurality of users which includes the winning
bidder access to their respective payment accounts for viewing
the amount of funds stored therein;
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determining the conclusion of the auction sale by the
electronic auction system; and
interacting with said winning bidder by the electronic
auction system by performing the steps of:
sending an e-mail by the electronic auction system to the
winning bidder;
receiving, via one of the electronic auction web site and
the e-mail, at least one input from the winning bidder indicating
an initiation to effect payment to the seller;
providing a payment page to the winning bidder after
receiving the at least one input from the winning bidder, said
payment page displaying the amount of funds to be deducted
from a payment account of the plurality of payment accounts
corresponding to the winning bidder, said payment account
having been created using informational data received via the at
least one web page accessible via the at least one web page of
the electronic auction web site; and
receiving, via the payment page, authorization from the
winning bidder to proceed with effecting payment to the seller;
deducting funds from the payment account storing funds
therein and corresponding to the winning bidder; and
using at least a portion of the deducted funds to effect
payment to at least the seller, wherein the method for effecting
payment does not require any interaction between the winning
bidder and the seller.

App. Br., Claims App’x.

PRIOR ART REJECTIONS
The Examiner relies on the following references:
Woolston 5,845,265 Dec. 1, 1998
Churchill 7,461,022 Dec. 2, 2008
Hutchison 7,761,385 Jul. 20 2010
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The Examiner adopts, or adopts with modification, the following
rejections proposed by the Requester:
1. The rejection of Claims 1, 3, 4, 6, 11, 19, 21, 28, 34, 43, 47, and 52
under 35 U.S.C. §102(e) as being anticipated Hutchison.
2. The rejection of Claim 52 under 35 U.S.C. §103(a) as being
unpatentable over Hutchison and Churchill.
3. The rejection of Claims 1, 3, 11, 15, 21, 34, 43, and 47 under
35 U.S.C. §103(a) as being unpatentable over Hutchison and
PO Admissions.
4. The rejection of Claim 52 under 35 U.S.C. §103(a) as being
unpatentable over Hutchison, Churchill, and PO Admissions.
5. The rejection of Claims 1, 3, 4, 6, 11, 19, 28, 34, 43, and 52 under
35 U.S.C. §§ 102(a) and 102(e) as anticipated by Churchill.
6. The rejection of Claims 1, 3, 11, 15, 43, and 52 under 35 U.S.C.
§ 103(a) as being unpatentable over Churchill, and
PO Admissions.
7. The rejection of Claims 6, 19, 21, 43, and 47 under 35 U.S.C.
§ 103(a) as being unpatentable over Churchill and Hutchison.
8. The rejection of Claims 21, 34, 43, and 47 under 35 U.S.C. §103(a)
as being unpatentable over Hutchison, Churchill, and
PO Admissions.
9. The rejection of Claims 4, 11, 15, 19, 28, and 52 under 35 U.S.C.
§103(a) as being unpatentable over Woolston and Churchill.
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ISSUES
1. Did the Examiner err by failing to consider the secondary
considerations evidence submitted after the Action Closing Prosecution?
2. Can the Patent Owner change the scope of claim terms by
disavowing certain features rather than by amending the claim?
3. Did the Examiner incorrectly rely on separate and distinct
embodiments within each prior art reference for the anticipation rejections?
4. Did the Examiner err by rejecting the instant claims as anticipated
under 35 U.S.C. § 102(e) by each of Hutchison and Churchill?
5. Did the Examiner err by rejecting the instant claims as obvious
under 35 U.S.C. § 103(a) in view of the cited combinations of prior art?

PRINCIPLES OF LAW
“To anticipate a claim, a prior art reference must disclose every
limitation of the claimed invention, either explicitly or inherently.” In re
Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997). “But disclosure of each
element is not quite enough—[the Federal Circuit] has long held that
‘[a]nticipation requires the presence in a single prior art disclosure of all
elements of a claimed invention arranged as in the claim.’” Net MoneyIN,
Inc. v. VeriSign, Inc., 545 F.3d 1359, 1371 (Fed. Cir. 2008)(citations
omitted). The Federal Circuit has also explained that the inquiry is “not
constrained to proceed example-by-example when reviewing an allegedly
anticipating prior art reference. Rather, the [reviewer] must, while looking at
the reference as a whole, conclude whether or not that reference discloses all
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elements of the claimed invention arranged as in the claim.” Net MoneyIN,
545 F.3d at 1369 n. 5.

ANALYSIS
EVIDENCE OF SECONDARY CONSIDERATIONS
The Patent Owner argues that the Examiner erred by not considering
evidence submitted after the Action Closing Prosecution. See PO App. Br.
13-14; see also PO Reply Br. 1-2. However, as the Patent Owner is aware,
the Examiner’s refusal to enter evidence submitted after the Action Closing
Prosecution into the record is a petitionable matter. See 37 C.F.R. §1.181;
see also Petition Under 37 C.F.R. §1.181 For the United States Patent and
Trademark Office to Reconsider Evidence of Secondary Considerations,
dated November 26, 2012. Because the Examiner did not enter the
evidence, and because the Central Reexamination Unit denied the Patent
Owner’s petition to enter the evidence, the evidence is not of record and not
properly before the Board. See RAN 21-23; Decision on Petition For Entry
of Affidavit After ACP, dated Apr. 22, 2013 (denying entry of the evidence
for failing to comply with 37 C.F.R. § 1.116). Therefore, we will not
consider this evidence submitted by the Patent Owner after the Action
Closing Prosecution.
3

3
The Patent Owner also acknowledges that the rules require establishing
good and sufficient reasons as to why the evidence was not presented prior
to the Action Closing Prosecution, but “disagrees with the Office’s rules”
and asserts that the Patent Owner “should not have to establish good and
sufficient reasons why the evidence was not submitted earlier.” PO Reply
Br. 2. Mere disagreement with the Patent Office’s rules does not permit the
Patent Owner to disregard them. The Patent Owner here, like all other
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DISAVOWAL OF CLAIM SCOPE
The Patent Owner allegedly disavows “the claim scope of certain
claim terms” to distinguish over the cited prior art. See PO App. Br. 14-15,
19-20, 22-23; PO Reply Br. 2-6; see also e.g., PO App. Br. 14-15 (“the PO
hereby clearly and unambiguously disavows the full scope of the claim
terms ‘sending an e-mail by the electronic auction [or ‘commerce’] system
to the buyer[ or ‘winning bidder’]’” such that the scope is limited “to
sending an e-mail which includes a hyperlink.”) Underlying these
arguments though, is the erroneous premise that claim scope can be altered
during reexamination by “clearly and unambiguously” disavowing particular
features, instead of amending the claims.
To the contrary, it is well established that the appropriate method for
changing the scope of a claim during prosecution is claim amendment. For
example, while rejecting the contention that a loophole would be created by
limiting intervening rights only to claim amendments, not disavowals, the
Federal Circuit noted
…If, in reexamination, an examiner determines that particular
claims are invalid and need amendment to be allowable, one
would expect an examiner to require amendment rather than
accept argument alone. Indeed, Congress may well have
expected that changes in claim scope during reexamination
would ordinarily be made by amendment, which would avoid
the risk of creating a loophole in the intervening rights defense.
Moreover, if an argument does suffice to overcome a rejection,
it is probably because the claims at issue are not unallowable.

Patent Owners, is bound by the case law and rules governing reexamination
practice before the Patent Office.
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Marine Polymer Technologies, Inc. v. Hemcon, Inc., 672 F.3d
1350, 1364 (CAFC 2012).

Where, as here, the Examiner has rejected the claims as unpatentable
over the cited prior art, amendment may be needed to distinguish the claims.
The Patent Owner cannot circumvent this method by affirmatively stating “a
clear and unambiguous” disavowal. Accordingly, we agree with the
Requestor’s position that the Patent Owner cannot change the scope of the
claim terms through disavowal and consider each of the arguments presented
based on disavowal of claim scope (e.g., PO App. Br. 14-23; Reply Br. 2-6,
8-13) unpersuasive.
4

THE ANTICIPATION REJECTION OVER HUTCHISON
Claims 1, 3, 4, 6, 11, 19, 21, 28, 34, 43, 47, and 52
The Patent Owner maintains that the Examiner improperly relied on
separate and distinct embodiments of Hutchinson to reject the instant claims
as anticipated. PO App. Br. 24-28. We disagree.
According to the Patent Owner, Hutchison includes, and the Examiner
relies on, at least, (1) an “ordering products via the Internet” embodiment,
(2) a “seller is an auction website” embodiment, (3) the “automatically
deducted” embodiments of Fig. 8A and Fig. 9C, and (4) a “buyer indicates a
desire to purchase” embodiment of Figs. 11A-11E. See PO App. Br. 24-26.

4
Because we find the Patent Owner’s ability to change the claim scope
through disavowals unpersuasive, we need not reach the Patent Owner’s
dependent argument that the Requestor is not permitted to present new
substantial new questions of patentability of the changed claim scope. See
e.g., Reply Br. 2-4.
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The Patent Owner additionally identifies three other alleged
“embodiments.” PO App. Br. 28. Notably absent in the Patent Owner’s
argument though is any explanation of how Hutchison’s elements are
arranged in a different way from the claim or why each alleged embodiment
is “separate and distinct.” The Patent Owner merely cites different portions
of the Specification and use of language such as in “one embodiment” or in
“another embodiment.” See e.g., PO App. Br. 25-28. Without more, this is
not persuasive.
Instead, we agree with the Requestor’s position that the Patent Owner
improperly fails to consider the reference as a whole. See TPR Resp. Br. 10-
12. As explained by the Requestor, and identified in the Brief Description of
the Figures, Fig. 8C depicts an exemplary webpage used to apply for a
virtual payment account with Hutchison’s system. TPR Resp. Br. 11-12;
Hutchison, 4:31-33. Fig. 9C shows an exemplary webpage for customizing
that virtual payment account. TPR Resp. Br. 11-12; Hutchison 4:34-36.
Figs. 11A-11E then outline how to use the created and customized virtual
payment account to purchase goods, services, and/or content. Hutchison,
4:41-43. Given these disclosures, it is readily apparent then that these
alleged embodiments are at least directly related. Moreover, as the
Requestor explains, Hutchison combines the claim limitations in the same
way as in the instant claims. TPR Resp. Br. 11-12.
Similarly, we disagree with the Patent Owner that the alleged
“ordering products via the Internet” embodiments and a “seller is an auction
website” embodiments are separate and distinct. See PO App. Br. 25.
Hutchison, to the contrary, describes that the virtual payment system can be
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used to purchase products over the Internet, including for example, an
auction website. See TPR Resp. Br. 11-12 (noting that the “seller is an
auction website” embodiment is within the “ordering products” section of
the Specification). These disclosures thus do not warrant the Patent Owner’s
characterizations as separate and distinct embodiments. Therefore, we are
not persuaded that the Examiner improperly relied upon separate and distinct
embodiments in rejecting the instant claims as anticipated.
The Patent Owner additionally, with respect to claims 1, 4, 6, and 52,
argues that Hutchison fails to disclose “wherein the method for effecting
payment does not require any interaction between the winning bidder and
the seller.” PO App. Br. 23-24.
5
This argument, however, is misplaced.
Hutchison discloses a payment system where a virtual payment
account can be used to purchase products from, for example, an auction
website. See PO App. Br. 23 (citing Hutchison 15:8-11 and 24:22-51). The
Patent Owner maintains though that Hutchison’s purchase from an auction
website requires interaction between the buyer and the auction website (i.e.
between the winning bidder and the seller) that is precluded by the claim.
Particularly, the Patent Owner identifies two interactions between the
winning bidder and seller: (1) placing a bid and (2) email notifying the
winning bidder he has won. Because the claims only preclude interaction to
effect payment, the question before us then is whether either identified

5
We note that the Patent Owner, in the Reply Brief, apparently withdraws
this argument and admits that Hutchison teaches not requiring interaction to
effect payment to present the new argument, for the first time in the Reply
Brief, that a skilled artisan would not combine Hutchison with
PO Admissions because of this teaching. PO Reply Br. 13.
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interaction (i.e. the placing of a bid by the buyer or the email notification
sent to the winning bidder) is an interaction to effect payment to the seller.
See TPR Resp. Br 8-9.
The plain language of claim 1 expressly defines that the initiation of
effecting payment to the seller begins with receiving an input from the
winning bidder. See PO App. Br., Claims App’x (“receiving, via one of the
electronic auction web site and the e-mail, at least one input from the
winning bidder indicating an initiation to effect payment to the seller.”)
Interactions before this, such as Hutchison’s interactions placing bids or
email notifications, would not be to effect payment to the seller. Therefore,
we agree with the Requestor’s position that neither of the Patent Owner’s
identified interactions distinguish Hutchison.
Additionally, the Patent Owner complains of the Requestor’s (and the
Examiner’s) reliance on Col. 24, ll. 22-43 of Hutchison. In particular, the
Patent Owner states
the payment method relied upon by the TPR in its Rebuttal Brief
DOES require involvement from the buyer after having committed to
the purchase. The buyer needs to release an authorization to the
provider of the commerce gateway 52 to initiate the actual settlement
of funds and trigger payment to the seller in the next settlement batch.
PO Reply Br. 9 (capitalization in original).

We disagree with the Patent Owner’s characterization of the cited
passage of Hutchison. While Hutchison identifies that an authorization may
be provided in one instance, Hutchison also expressly states that “[t]his
payment method supports buyer-initiated, pre-approved purchases with
expiration date/time, such as auction and gift-certificate purchases.”
Hutchison 245:42-44 (emphasis added); see also RAN 70-71. The Patent
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Owner’s argument thus is unavailing. Therefore, we agree with the
Examiner and Requestor that Hutchison discloses “wherein the method for
effecting payment does not require any interaction between the winning
bidder and the seller.”
The Patent Owner’s remaining arguments rely on its impermissible
claim scope disavowals. See e.g., PO Reply Br. 2-6, 8-13. As discussed
above, we disagree that the Patent can change the scope of the claims
through disavowal and therefore find these arguments also unpersuasive.
Accordingly, we are not apprised of error in the Examiner’s rejection
of claims 1, 3, 4, 6, 11, 19, 21, 28, 34, 43, 47, and 52 as anticipated by
Hutchison and affirm the rejection.

THE ANTICIPATION REJECTION OVER CHURCHILL
Claims 1, 3, 4, 6, 11, 19, 28, 34, 43, 47, and 52
The Patent Owner asserts that the Examiner erred in relying on
Churchill’s allegedly separate and distinct embodiments in rejecting the
claims as anticipated. PO App. Br. 27. Similar to the same argument
discussed above with respect to Hutchison, we find it unpersuasive.
In particular, the Patent Owner identifies that the Examiner relied on
nine “separate and distinct” embodiments in the RAN and another nine
“separate and distinct” embodiments in the Requestor’s Request for
Reexamination. PO App. Br. 29-32. The Patent Owner supports its
contentions by merely citing passages of the Specification. The Patent
Owner fails to present any supporting argument or evidence that Churchill in
fact discloses these alleged separate and distinct embodiments.
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To the contrary, as explained by the Requestor,
[l]ike Hutchison, Churchill describes an overarching
invention. Namely, Churchill disclose that its ‘present invention
relates to online auctions via user accounts, having one or more
different types of payment units (e.g., incentive points, money
and associated point or cash credit), from which payment
transactions are conducted.’ Churchill at 1: 13-17. Churchill
discloses that different aspects of this "present invention" can
be adapted to include different features. See Ex parte Ness
(finding that Examiner's reference to ‘multiple embodiments’
appropriate where the embodiments provided further
illustration of the main embodiment). For example, Churchill
discloses that users can bid on auctions manually, or
alternatively, through an automated bidding agent. See
Churchill at 44:49-49:15. Churchill also discloses that the
payment unit can be incentive points or cash. See Churchill at
1: 12-17. Churchill also discloses that its system supports
different auction types. See generally Churchill at 26:43-42:24.
TPR Resp. Br. 12-13.

We agree with the Requestor’s position. The Patent Owner fails to
persuasively respond or provide any indication as to why the identified at
least alleged embodiments are “separate and distinct” embodiments. See
e.g., PO Reply Br. 13-15 (asserting that the Examiner failed present a prima
facie case of anticipation because the Examiner relied on multiple
embodiments, without explaining why the alleged embodiments are separate
and distinct). We are therefore not persuaded that the Examiner improperly
relied on separate and distinct embodiments of Churchill in rejecting the
claims as anticipated.
The Patent Owner’s remaining arguments rely on its impermissible
claim scope disavowals. See e.g., PO Reply Br. 2-6, 8-13. As discussed
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above, we disagree that the Patent can change the scope of the claims
through disavowal and therefore find these arguments also unpersuasive.
Accordingly, we are not apprised of error in the Examiner’s rejection
of claims 1, 3, 4, 6, 11, 19, 21, 28, 34, 43, 47, and 52 as anticipated by
Churchill and affirm the rejection.

THE OBVIOUSNESS REJECTIONS
Claims 1, 3, 4, 6, 11, 15, 19, 21, 28, 34, 43, 47, and 52
The Patent Owner initially relies on the same arguments presented
with respect to the anticipation rejections based on Hutchison and Churchill.
See PO App. Br. 33. For the same reasons as discussed above, we find these
arguments unavailing.
We similarly find that the Patent Owner’s additional arguments,
presented for the first time in the Reply Brief, lack merit. Namely, we do
not agree with the Patent Owner that the PO Admissions teach away from
the combination with any of Hutchison, Churchill, or Woolston. See PO
Reply Br. 6-8.
According to the Patent Owner, since each of Hutchison, Churchill,
and Woolston “do not require interaction between the buyer (winning
bidder) and the seller to effect payment, [each reference] cannot be
combined with PO Admissions.” PO Reply Br. 7-8. This single conclusory
statement, without more, is not persuasive. Further, even if this
demonstrates that the references teach an alternative, the mere disclosure of
an alternative is not sufficient to establish that a reference teaches away from
a combination. See DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc.,
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567 F.3d 1314, 1327 (Fed. Cir. 2009) (“A reference does not teach away
[…] if it merely expresses a general preference for an alternative
invention[.]”).
The Patent Owner’s remaining arguments rely on its impermissible
claim scope disavowals. See e.g., PO Reply Br. 2-6, 8-13. As discussed
above, we disagree that the Patent can change the scope of the claims
through disavowal and therefore find these arguments also unpersuasive.
Accordingly, for the reasons identified above and discussed
by the Examiner, we are not apprised of error in the Examiner’s rejection of
claims 1, 3, 4, 6, 11, 15, 19, 21, 28, 34, 43, 47, and 52 as unpatentable as
obvious over the cited combinations of prior art and accordingly affirm the
rejections.

DECISION
The Examiner’s decision to reject claims 13, 26, 33, and 38 is
affirmed.
Requests for extensions of time in this inter partes reexamination
proceeding are governed by 37 C.F.R. § 1.956. See 37 C.F.R. § 41.79.
Pursuant to 37 C.F.R. § 41.79(d), this decision is final for the purpose
of judicial review. A party seeking judicial review must timely serve notice
on the Director of the United States Patent and Trademark Office. See 37
C.F.R. §§ 90.1 and 1.983.

AFFIRMED

Ak
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PATENT OWNER:
GEORGE LIKOUREZOS, ESQ.
261 WASHINGTON AVE.
ST. JAMES, NY 11780

THIRD-PARTY REQUESTER:

DENTONS US, LLP
P.O. BOX 061080
CHICAGO, IL 60606-1080