Ex Parte McCallum

Board of Patent Appeals and Interferences

Aug 26, 2009

10252771 (B.P.A.I. Aug. 26, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte MARK W.J. MCCALLUM
____________

Appeal 2009-003082
Application 10/252,771
Technology Center 3600
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Decided: August 26, 2009
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Before MURRIEL E. CRAWFORD, JOSEPH A. FISCHETTI, and BIBHU
R. MOHANTY, Administrative Patent Judges.

CRAWFORD, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2009-003082
Application 10/252,771

2
STATEMENT OF THE CASE
This is an appeal from the final rejection of claims 16 to 18, 25, and
28 to 32.
We have jurisdiction to review the case under 35 U.S.C. §§ 134 and 6
(2002).
The claimed invention is directed to an automated teller machine
(“ATM”) which includes a controller for controlling the cash dispenser and
for levying a variable rate surcharge on the cash transaction conducted by
the ATM based upon the frequency of use of the ATM, the amount of
money remaining in the ATM or the point in time in which the cash is
dispensed (Spec. 6). Claim 16, reproduced below, is further illustrative of
the claimed subject matter.
16. An automated teller machine (ATM)
comprising:
a cash dispenser for dispensing cash to
an ATM customer conducting a cash dispense
transaction; and
a controller for (i) controlling the cash
dispenser to dispense cash to the ATM customer
while the ATM customer is conducting the cash
dispense transaction, and (ii) levying a variable
rate surcharge on the cash dispense transaction
conducted by the ATM customer based upon
frequency of use of the ATM prior to when the
cash dispense transaction is conducted.
The reference of record relied upon by the Examiner as evidence of
obviousness is:
Chen US 2002/0032656 A1 Mar. 14, 2002
The Examiner rejected claims 16 to 18, 25, and 28 to 32 under 35
U.S.C. § 102(a) as anticipated by Chen.
Appeal 2009-003082
Application 10/252,771

3
OPINION
We have carefully reviewed the rejections on appeal in light of the
arguments of the Appellant and the Examiner. As a result of this review, we
have reached the conclusion that the applied prior art does not anticipate the
claimed subject matter. Therefore the rejection on appeal is reversed. Our
reasons follow.
The following comprise our findings of facts with respect to the scope
and content of the prior art and the differences between the prior art and the
claimed subject matter. Chen discloses an ATM service provider which
provides multiple ATMs. The ATMs are connected to a network [0031].
Each ATM has a controller for controlling a cash dispenser and for levying a
surcharge on the cash transaction [0032]. Chen also discloses that some
financial institutions may wish to provide free ATM access to their
customers in certain geographic regions and may wish to provide access for
their customers for a fee in other regions. A financial institution may offer a
predetermined number of free transactions on a periodic basis and charge a
fee for transactions in excess of the predetermined number [0032]. The
disagreement between the Appellant and the Examiner is with respect to
whether Chen discloses a controller for controlling the cash dispenser so as
to levy a variable rate surcharge on the cash transaction conducted by the
ATM based upon the frequency of use of the ATM, the amount of money
remaining in the ATM or the point in time in which the cash is dispensed.
We do not agree with the Examiner that the sentence in paragraph 32
regarding providing free ATM usage for a predetermined number of
transactions and charging thereafter relates to a particular ATM as is
required by claims 16 and 25. We find this finding of the Examiner to be
Appeal 2009-003082
Application 10/252,771

4
speculative at best. In fact, in our view, this sentence states that a customer
is allowed a predetermined free uses of any ATM in the network before a
charge is levied. We note in this regard that the sentence does not discuss a
particular ATM.
We likewise find that Chen does not disclose a controller that levies a
surcharge based on the amount of money remaining in the ATM as required
by independent claim 28. We have examined paragraphs [0032] and [0037]
to 40, referenced by the Examiner, and find nothing therein to support a
finding that Chen discloses a controller that levies a surcharge based on the
amount of money remaining in the ATM.
Finally, we find nothing in paragraphs [0037] to [0038], referenced by
the Examiner to support the Examiner’s finding that Chen discloses levying
a surcharge to the ATM user based on the point in time at which the ATM is
used as required by independent claim 29.
Therefore we are constrained to reverse all rejections on appeal.

CONCLUSION AND ORDER
The rejection of claims 16 to 18, 25, and 28 to 32 is reversed.

REVERSED

hh

MICHAEL CHAN
NCR CORPORATION
1700 SOUTH PATTERSON BLVD
DAYTON, OH 45479-0001