Ex Parte Mesaros

Board of Patent Appeals and Interferences

Nov 26, 2008

10351069 (B.P.A.I. Nov. 26, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte GREGORY J. MESAROS
____________

Appeal 2008-0970
Application 10/351,069
Technology Center 3600
____________

Decided: November 26, 2008
____________

Before MURRIEL E. CRAWFORD, HUBERT C. LORIN, and
JOSEPH A. FISCHETTI, Administrative Patent Judges.

LORIN, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Gregory J. Mesaros (Appellant) seeks our review under 35 U.S.C. §
134 of the final rejection of claims 1-14 and 33-40. Claims 15-32 have been
withdrawn. We have jurisdiction under 35 U.S.C. § 6(b) (2002).
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SUMMARY OF DECISION
We AFFIRM.1

THE INVENTION
The invention “relates to a demand aggregation system.”
(Specification 2:11.) “A demand aggregation system is structured to provide
incentive for buyers to work together when purchasing products. By
working together, buyers are able to take advantage of lower pricing due to
quantity discounts.” (Specification 3:20-22.) Fig. 1 shows “a demand
aggregation system 10 … in which multiple buyers 15 and sellers 20 are
electronically linked via a central server 25. … [T]he central server 25 is
configured to provide the buyers 15 and sellers 20 with a convenient forum
in which to buy and sell goods in accordance with [the invention].”
(Specification 7:10-14.) The demand aggregation system “can include a
sales manager dashboard for allowing the at least one seller to set up
DealRooms, price curves, offers, products, customers, and/or customer
groups, for example. The sales manager dashboard can include a plurality of
wizards for configuring such information.” (Specification 3:27-4:1.)
Claim 1, reproduced below, is illustrative of the subject matter on
appeal.
1. A business transaction methodology,
comprising:
using a dashboard containing a plurality of
wizards that can quickly configure a set of

1 Our decision will make reference to Appellant’s Appeal Brief (“App. Br.,”
filed Dec. 11, 2006) and Reply Brief (“Reply Br.,” filed Jul. 18, 2007), and
the Examiner’s Answer (“Answer,” mailed May 18, 2007).
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information, the set of information including a
price curve and a quantity for a product, the price
curve changing as the product quantity changes;
displaying the set of information to at least
one buyer based on a profile of the at least one
buyer; and
receiving an order for the product from the
at least one buyer.

THE REJECTIONS
The Examiner relies upon the following as evidence of
unpatentability:
Luke
Chelliah
Carter, III
Kolton
Stack
Conklin
Henson
US 6,131,087
US 5,710,887
US 5,878,400
US 5,414,838
US 6,782,370 B1
US 6,141,653
US 6,167,383
Oct. 10, 2000
Jan. 20, 1998
Mar. 2, 1999
May 9, 1995
Aug. 24, 2004
Oct. 31, 2000
Dec. 26, 2000

The following rejections are before us for review:
1. Claims 1, 3-6, 8-14, 33, 35, 36, and 39 are rejected under 35 U.S.C. §
103(a) as being unpatentable over Luke and Chelliah.
2. Claims 2 and 7 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Luke, Chelliah, and Carter, III.
3. Claim 34 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Luke, Chelliah, and Kolton.
4. Claim 37 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Luke, Chelliah, and Stack.
5. Claim 38 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Luke, Chelliah, and Conklin.
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6. Claim 40 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Luke, Chelliah, and Henson.

ISSUES
The first issue is whether the cited prior art would suggest “using a
dashboard containing a plurality of wizards that can quickly configure a set
of information, the set of information including a price curve and a quantity
for a product, the price curve changing as the product quantity changes”
(claim 1).
The second issue is whether the cited prior art would suggest
“displaying the set of information to at least one buyer based on a profile of
the at least one buyer” (claim 1); the set of information “including a price
curve and a quantity for a product, the price curve changing as the product
quantity changes” (id.).

FINDINGS OF FACT
We find that the following enumerated findings of fact (FF) are
supported by at least a preponderance of the evidence. Ethicon, Inc. v.
Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988) (explaining the general
evidentiary standard for proceedings before the Office).
Claim construction
1. Claim 1 calls for using a dashboard containing wizards that can
quickly configure a set of information that includes “a price curve”
and a quantity for a product.
2. The Specification does not provide a definition for “price curve.”
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3. The claim and the Specification (see e.g., p. 38) use the term
“curve” in the mathematical sense.
4. In the mathematical sense, the ordinary and customary meaning of
“curve” is “a one-dimensional continuum of points in a space of
two or more dimensions, such as a parabola in a plane or a helix in
three-dimensional space; a straight line or line segment is a type of
curve.” (See Webster’s New World Dictionary 341 (3rd Ed. 1988.)
Entry 8 Math. for “curve”.)
5. Claim 1 calls for “displaying the set of information to at least one
buyer based on a profile of the at least one buyer.”
6. The ordinary and customary meaning of “profile” is “a graph,
diagram, piece of writing, etc. presenting or summarizing data
relevant to a particular person or thing.” (See Webster’s New
World Dictionary 1074 (3rd Ed. 1988.) Entry 4 for “profile”.)
The scope and content of the prior art
7. Luke relates to matching buyers and sellers in an electronic
marketplace.
8. Fig. 1a of Luke shows a continuum between three price points;
minimum, preferred, and maximum prices for a transaction
9. Luke states: “As illustrated in Fig. 1a, the generic offer and
solicitation each contain three dimensions: price, product quantity,
and delivery date. … Each dimension has a linear scale upon
which a range of transaction terms may be plotted.” (Col. 6, ll. 56-
66.)
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10. Luke’s system is a system for matching buyers and sellers “by
matching parties with compatible ranges on the many product
dimensions.” (Col. 11, ll. 8-9.)
11. Luke indicates that an advantage of its system is its ability to effect
a flexible matching of dimensions. (Col. 11, ll. 29-34.)
12. Chelliah relates to a method of electronic commerce. The
Examiner relied upon Chelliah to show a “system for facilitating
electronic transactions using a dashboard containing a plurality of
wizards that can quickly configure a set of information.” (Answer
5.) The Appellant did not challenge the Examiner’s
characterization of what Chelliah shows.
13. Carter, III, relates to pricing products. The Examiner relied on
Carter, III, to show the limitations of claim 2. (Answer 9.) The
Appellant did not challenge the Examiner’s characterization of
what Carter, III, shows.
14. Kolton relates to a computerized retrieval system. The Examiner
relied on Kolton to show the limitations of claim 34. (Answer 10.)
The Appellant did not challenge the Examiner’s characterization of
what Kolton shows.
15. Stack relates to a system for providing recommendations. The
Examiner relied on Kolton to show the limitations of claim 37.
(Answer 11.) The Appellant did not challenge the Examiner’s
characterization of what Stack shows.
16. Conklin relates to a multivariate negotiations engine for iterative
bargaining. The Examiner relied on Conklin to show the
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limitations of claim 38. (Answer 12.) The Appellant did not
challenge the Examiner’s characterization of what Conklin shows.
17. Henson relates to an online store user interface for enabling
customer configuration. The Examiner relied on Henson to show
the limitations of claim 40. (Answer 13.) The Appellant did not
challenge the Examiner’s characterization of what Henson shows.
Any differences between the claimed subject matter and the prior art
18. There is no direct disclosure in the prior art of “using a dashboard
containing a plurality of wizards that can quickly configure a set of
information, the set of information including a price curve and a
quantity for a product, the price curve changing as the product
quantity changes” (claim 1) or “displaying the set of information to
at least one buyer based on a profile of the at least one buyer” (id.).
The level of skill in the art
19. Neither the Examiner nor the Appellant has addressed the level of
ordinary skill in the pertinent art of using wizards to configure a set
of information. We will therefore consider the cited prior art as
representative of the level of ordinary skill in the art. See Okajima
v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001) (“[T]he
absence of specific findings on the level of skill in the art does not
give rise to reversible error ‘where the prior art itself reflects an
appropriate level and a need for testimony is not shown’”)
(Quoting Litton Indus. Prods., Inc. v. Solid State Sys. Corp., 755
F.2d 158, 163 (Fed. Cir. 1985)).
Secondary considerations
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20. There is no evidence on record of secondary considerations of non-
obviousness for our consideration.

PRINCIPLES OF LAW
Obviousness
“Section 103 forbids issuance of a patent when ‘the differences
between the subject matter sought to be patented and the prior art are such
that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains.’” KSR Int'l Co. v. Teleflex Inc., 127 S. Ct. 1727,
1734 (2007). The question of obviousness is resolved on the basis of
underlying factual determinations including (1) the scope and content of the
prior art, (2) any differences between the claimed subject matter and the
prior art, and (3) the level of skill in the art. Graham v. John Deere Co., 383
U.S. 1, 17-18 (1966). See also KSR, 127 S. Ct. at 1734 (“While the
sequence of these questions might be reordered in any particular case, the
[Graham] factors continue to define the inquiry that controls.”) The Court in
Graham further noted that evidence of secondary considerations “might be
utilized to give light to the circumstances surrounding the origin of the
subject matter sought to be patented.” 383 U.S. at 17-18.

ANALYSIS
The rejection of claims 1, 3-6, 8-14, 33, 35, 36, and 39 under 35 U.S.C. §
103(a) as being unpatentable over Luke and Chelliah.
The Appellant argued claims 1, 3-6, 8-14, 33, 35, 36, and 39 as a
group (App. Br. 3-11). We select claim 1 as the representative claim for this
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group, and the remaining claims 3-6, 8-14, 33, 35, 36, and 39 stand or fall
with claim 1. 37 C.F.R. § 41.37(c)(1)(vii) (2007).
The first issue is whether the cited prior art would suggest “using a
dashboard containing a plurality of wizards that can quickly configure a set
of information, the set of information including a price curve and a quantity
for a product, the price curve changing as the product quantity changes.”
The Examiner relied on Luke as evidence that “the set of information
including a price curve and a quantity for a product, the price curve
changing as the product quantity changes” (Answer 4) is disclosed in the
prior art and Chelliah as prior art evidence of a “system for facilitating
electronic transactions using a dashboard containing a plurality of wizards
that can quickly configure a set of information.” (Answer 5.) The Examiner
concluded:
“It would have been obvious to one of ordinary
skill in the art at the time of invention to have
modified the invention of Luke to have included
wherein the dashboard is a sales manager
dashboard as taught by Chelliah in order to
provide an electronic commerce system which
closely replicates commercial transactions in
everyday life, thereby providing an electronic
assistant to assist a customer during interactions
with the system to facilitate electronic commercial
transactions (see at least: Chelliah, col. 2, line 65
to col. 3, line 3).

(Answer 5.)
The Appellant disputes that Luke discloses the claim limitation “the
set of information including a price curve and a quantity for a product, the
price curve changing as the product quantity changes.” (App. Br. 4-9.)
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Specifically, the Appellant disputes that Luke teaches or suggests “the price
curve changing as the product quantity changes.” According to the
Appellant, “[r]ather, Luke provides that each term [i.e., price and quantity]
be both independently entered by the participant and independently matched
by the system, and changes in the quantity in no way change the price
curve.” (App. Br. 5.) The Examiner had directed the Appellant’s attention
to Figs. 1a and 1b and col. 6, lines 20-34 of Luke. But, according to the
Appellant, “[t]he portions of the reference the Examiner indicates illustrate a
set of information (i.e., offer/solicitation data) including a price and a
quantity, but do not teach or suggest one changing as the other changes.”
(App. Br. 5.)
The Examiner responded to the Appellant’s argument by construing
the claimed phrase “price curve” as a graphical depiction of the price and
quantity dimensions.
More generically, the price curve is the resulting
depiction of the dimensions in the graphical
representation, not merely the price dimension
itself as asserted by the Applicant. In the case of
figure 1a of Luke, the graphical depiction is Price
v. Quantity v. Delivery Date and the resulting
negotiation area. As has been asserted throughout
prosecution by the Examiner, it is this graphical
depiction that constitutes the price curve. Any
change in quantity results in a change in the
depicted negotiation area, and thereby a change in
the Price v. Quantity v. Delivery Date curve.”
(Answer 15-16.)
The Appellant replied by arguing that
Luke does not teach or suggest any type of
correlation between one dimension and another
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dimension, which is precisely why the reference
must represent both offer and solicitation data as
polyhedrons with each side parallel to an axis
rather than as shapes that permit gradients with
respect to other dimensions, such as FIG. 18 of
applicant’s disclosure … that clearly shows price
can be a function of time for a price curve.

(Reply Br. 2.)
We have reviewed the claim and Luke. We find that the Examiner
has the better position.
We begin by giving the claim the broadest reasonable construction in
light of the Specification as it would be interpreted by one of ordinary skill
in the art, with specific focus on the claim phrase “the price curve changing
as the product quantity changes.” The Appellant does not point to anywhere
in the Specification where the phrase “price curve” is defined, nor do we
find any such definition in the Specification. On the other hand, one of
ordinary skill in the art reading the claim would understand the term “curve”
in the phrase “price curve” signifies a mathematical relationship. In that
context, the ordinary and customary meaning of “curve” is, at a minimum, a
continuum between two points on a plane. (FF 4.)
Fig. 1a of Luke shows a continuum between three price points;
minimum, preferred, and maximum prices. (FF 8.) This is a depiction of a
curve. And, because this depicted continuum involves price points, it is
necessarily a “price curve.” We see no difference between the price curve
depicted in Luke and the claimed “price curve.”
The next question is whether Luke suggests a “price curve” “changing
as the product quantity changes” (claim 1). Put another way, does Luke
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suggest changing the continuum between price points with changes in
product quantity? We find that it does. Luke states: “As illustrated in Fig.
1a, the generic offer and solicitation each contain three dimensions: price,
product quantity, and delivery date. … Each dimension has a linear scale
upon which a range of transaction terms may be plotted.” (FF 9.) Thus,
Luke discloses a price curve relative a product quantity for a particular
transaction. This disclosure describes a static relationship between quantity
and price curve for a particular transaction. However, Luke’s system is not a
static one but a dynamic system for matching buyers and sellers “by
matching parties with compatible ranges on the many product dimensions.”
(FF 10.) One of the stated advantages of Luke’s system is its ability to
effect a flexible matching of dimensions. (FF 11.) One of ordinary skill in
the art reading Luke would understand the system as one which allows
changes in the ranges of dimensions of, for example, price, product quantity,
and delivery date, until they match for the buyer and seller. A change in the
range of quantity and price necessarily means a change in both the price
curve and the product quantity. Doing so changes the “price curve” as “the
product quantity changes.”
We have carefully reviewed the Appellant’s arguments. We find
them unpersuasive as to error in the Examiner’s reliance on Luke as
evidence that the claim limitation “the price curve changing as the product
quantity changes” is shown. The Appellant’s arguments read more into the
claim than is warranted. For example, the Appellant argues that
Luke does not teach or suggest any type of
correlation between one dimension and another
dimension, which is why the reference must
represent both offer and solicitation data as
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polyhedrons with every side parallel to an axis
rather than as shapes that permit gradients with
respect to other dimensions, such as FIG. 18 of
applicant’s disclosure … that clearly shows price
can be a function of time for a price curve.
(Reply Br. 2.) However, we see nothing in the claim which explicitly or
implicitly requires the price dimension of the “price curve” to be a function
of any other dimension, including time. As another example, the Appellant
contends that in Luke “the underlying curves for each dimension …. never
change independently.” (App. Br. 7.) For this contention to form a
persuasive challenge to the applicability of Luke, the claim would have to
describe the cause of the change in the price curve as dependent on a change
in product quantity. However, the claim simply states that the price curve
changes as the product quantity changes. The claim nowhere states that the
reason the price curve changes is because the product quantity changes.
Therefore, it is enough that Luke would suggest to one of ordinary skill in
the art to mutually change the price curve and product quantity.
The second issue is whether the cited prior art would suggest
“displaying the set of information to at least one buyer based on a profile of
the at least one buyer” (claim 1); the set of information “including a price
curve and a quantity for a product, the price curve changing as the product
quantity changes” (id.).
Relying on, among other passages, col. 4, ll. 26-45; col. 5, ll. 26-32;
and, col. 6, ll. 12-19; the Examiner takes the position that “Luke teaches
matching buyers and sellers in an electronic marketplace using a solicitation
database containing information of both buyers and sellers. This
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information … is used to match the buyer and sellers and constitutes buyer
and seller profiles stored in the database.” (Answer 16.)
The Appellant disagrees. The Appellant argues that “[a]t most, Luke
teaches displaying the offer/solicitation data based upon the offer/solicitation
data.” (Reply Br. 4.)
The issue is whether Luke displays “a price curve and a quantity for a
product, the price curve changing as the product quantity changes” to at least
one buyer based on a profile of the at least one buyer. The question of
whether Luke would suggest “a price curve and a quantity for a product, the
price curve changing as the product quantity changes” has already been
answered; we found that Luke would suggest such a set of information. The
issue boils down to whether Luke would suggest to one of ordinary skill in
the art displaying this set of information to a buyer based on the buyer’s
profile. But since Luke clearly teaches displaying the set of information to a
buyer (as well as a seller), the issue boils even further down to whether the
displaying that Luke performs is based on the buyer’s profile. In that regard,
the Appellant does not point to a definition in the Specification, nor do we
find any, for the term “profile” that would give it a meaning different than its
ordinary and customary meaning, which would be data relevant to the buyer.
As the Examiner has pointed out, Luke’s system involves matching buyers
and sellers (see e.g., col. 4, ll. 26-45). A system whereby buyers are
matched up with sellers would suggest to one of ordinary skill in the art a
profile for the buyer that matches that of the seller.
The Appellant has argued that this reasoning to show that Luke would
suggest “displaying the set of information to at least one buyer based on a
profile of the at least one buyer” (claim 1), which uses Luke’s
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offer/solicitation data as both the set of information to be displayed and
representing the buyer’s profile, “is logically inconsistent and
impermissible.” (App. Br. 10.) According to the Appellant, this is so
because “[w]hen considering the claim as a whole, … it is readily apparent
that the set of information is materially distinct from a buyer profile.” (App.
Br. 10.) We disagree. We see nothing in the claim that precludes the set of
information from representing the buyer profile. Nothing in the claim sets
the data representing the buyer profile as being something other and distinct
from the set of information to be displayed to the buyer. The claim
encompasses the set of information having the additional function of
representing the buyer profile. Accordingly, we are not persuaded by this
argument as to error in the Examiner’s rationale.
There being no other issues, for the foregoing reasons we find the
Appellant’s arguments unpersuasive as to error in the rejection of claim 1.
Because claims 3-6, 8-14, 33, 35, 36, and 39 stand or fall with claim 1, we
reach the same conclusion as to these claims.

The rejection of claims 2 and 7 under 35 U.S.C. § 103(a) as being
unpatentable over Luke, Chelliah, and Carter, III.
The Appellant relies on the arguments challenging the rejection of
claim 1 to challenge the rejection of claims 2 and 7. (App. Br. 11.) Because
we found the arguments unpersuasive as to error in the rejection of claim 1,
we reach the same conclusion as to the rejection of these claims.

The rejection of claim 34 under 35 U.S.C. § 103(a) as being unpatentable
over Luke, Chelliah, and Kolton.
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The Appellant relies on the arguments challenging the rejection of
claim 1 to challenge the rejection of claim 34. (App. Br. 11.) Because we
found the arguments unpersuasive as to error in the rejection of claim 1, we
reach the same conclusion as to the rejection of this claim.

The rejection of claim 37 under 35 U.S.C. § 103(a) as being unpatentable
over Luke, Chelliah, and Stack.
The Appellant relies on the arguments challenging the rejection of
claim 1 to challenge the rejection of claim 37. (App. Br. 12.) Because we
found the arguments unpersuasive as to error in the rejection of claim 1, we
reach the same conclusion as to the rejection of this claim.

The rejection of claim 38 under 35 U.S.C. § 103(a) as being unpatentable
over Luke, Chelliah, and Conklin.
The Appellant relies on the arguments challenging the rejection of
claim 1 to challenge the rejection of claim 38. (App. Br. 12.) Because we
found the arguments unpersuasive as to error in the rejection of claim 1, we
reach the same conclusion as to the rejection of this claim.

The rejection of claim 40 under 35 U.S.C. § 103(a) as being unpatentable
over Luke, Chelliah, and Henson.
The Appellant relies on the arguments challenging the rejection of
claim 1 to challenge the rejection of claim 40. (App. Br. 12.) Because we
found the arguments unpersuasive as to error in the rejection of claim 1, we
reach the same conclusion as to the rejection of this claim.

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CONCLUSIONS OF LAW
We conclude that the Appellants have not shown that the Examiner
erred in rejecting claims 1, 3-6, 8-14, 33, 35, 36, and 39 under 35 U.S.C. §
103(a) as being unpatentable over Luke and Chelliah; claims 2 and 7 under
35 U.S.C. § 103(a) as being unpatentable over Luke, Chelliah, and Carter,
III; claim 34 under 35 U.S.C. § 103(a) as being unpatentable over Luke,
Chelliah, and Kolton; claim 37 under 35 U.S.C. § 103(a) as being
unpatentable over Luke, Chelliah, and Stack; claim 38 under 35 U.S.C. §
103(a) as being unpatentable over Luke, Chelliah, and Conklin; and, claim
40 under 35 U.S.C. § 103(a) as being unpatentable over Luke, Chelliah, and
Henson.

DECISION
The decision of the Examiner to reject claims 1-14 and 33-40 is
affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2007).
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AFFIRMED

hh

Himanshu S. Amin
Amin & Turocy, LLP
National City Center
1900 E. 9th Street, 24th Floor
Cleveland, OH 44114