Ex Parte Miller

Board of Patent Appeals and Interferences

Sep 21, 2010

09803667 (B.P.A.I. Sep. 21, 2010)

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.
09/803,667 03/12/2001 David S. Miller 41425-CNT2 9714
23589 7590 09/21/2010
Hovey Williams LLP
10801 Mastin Blvd., Suite 1000
Overland Park, KS 66210
EXAMINER
MEINECKE DIAZ, SUSANNA M
ART UNIT PAPER NUMBER
3684
MAIL DATE DELIVERY MODE
09/21/2010 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 THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte DAVID S. MILLER
____________

Appeal 2009-001715
Application 09/803,667
Technology Center 3600
____________

Before JAMES T. MOORE, Vice Chief Administrative Patent Judge,
JAMESON LEE and SALLY C. MEDLEY, Administrative Patent Judges.

MEDLEY, Administrative Patent Judge.
DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
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STATEMENT OF THE CASE
Simplification, LLC (“Simplification”), the real party in interest,
seeks review under 35 U.S.C. § 134(a) of a Final Rejection of claims 1-7,
11, 13 and 35-50. We have jurisdiction under 35 U.S.C. § 6(b). We
AFFIRM.
BACKGROUND
Simplification discloses a method and computer program embedded
on a computer readable medium for collecting tax information. A tax
information requestor is electronically connected to an electronic
intermediary or a tax data provider. A tax payer’s tax return or tax data is
electronically collected from the electronic intermediary or tax data
provider. The tax information requestor performs a check of the taxpayer
using the tax return or tax data. Spec. 3-9.
Claim 1 is illustrative:
A method for collecting tax information by a tax
information requestor comprising the steps of:
connecting electronically said tax information requestor to
an electronic intermediary;
collecting electronically at least one of an electronic tax
return or tax data of a taxpayer from said electronic
intermediary, wherein said electronic tax return and/or tax data
is electronically provided to said electronic intermediary by a
tax data provider; and
performing a check of said taxpayer by said tax information
requestor using said electronic tax return or tax data collected
electronically,
wherein said check is not used to compute taxes of said
taxpayer, wherein said tax information requestor is not a taxing
authority, and wherein said electronic intermediary stores said
electronic tax return or tax data.

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The Examiner relies on the following prior art reference:
Baker 6,473,741 Oct. 29, 2002
Simplification appeals the rejection of claims 1, 2, 4-7, 11, 13 and 35-
50 under 35 U.S.C. § 102(e) as anticipated by Baker.
Simplification appeals the rejection of claims 3, 6, 38, 40, 43, 46 and
49 under 35 U.S.C. § 103(a) as unpatentable over Baker.
ISSUES
1. Does Baker describe a “tax data provider”?
2. Does Baker describe connecting a tax data provider to a tax data
requestor?
3. Has the Examiner incorrectly determined that it would have been
obvious, based on the rationale provided, to modify the teachings of
Baker to include tax data providers of the form specified in claim 6?
FINDINGS OF FACT
Simplification’s Specification
1. The term "tax data provider" refers to each party that has tax
information relevant to the taxpayer's tax liability or tax reporting
obligations. Non-limiting examples of tax data providers include the
taxpayer's employers [], partnerships, banks [], savings and loan
institutions, mortgage institutions, credit card bureaus, thrift
institutions, security brokerage firms [], mutual fund holding
institutions, charities [], and federal, state, local, and foreign taxing
authorities []. Spec. p. 9, l. 21-p.10, l. 3.
2. “[T]he term ‘taxpayer’ refers to an individual or other entity such as a
trust, estate, corporation, or partnership, who has tax liability or must
file a tax return.” Spec. p. 9, ll. 17-19.
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Baker
3. Baker describes electronically exchanging tax data between
accounting and tax preparation firms and the financial services
industry, the lending industry and data mining firms utilizing a data
cooperative or service bureau as an intermediary. Col. 5, ll. 34-43.
4. The accounting and tax preparation firms electronically transmit
taxpayers’ tax returns from their databases over the internet to the data
cooperative or service bureau. Col. 8, ll. 21-24, 37-39; col.10, l. 56-
col. 11, l. 2; fig. 1
5. Baker depicts, in figure 4, that a law firm provides the same tax data
as the accounting and tax preparation firms.
6. Data from professional tax preparers would not be different from data
submitted to the IRS by tax payers, thereby eliminating a layer of
verification for lenders and 3rd parties. Col. 6, ll. 7-20.
7. Lenders and 3rd parties have some assurance that information received
directly from a professional tax preparer has not been altered in a
fraudulent manner. Col. 5, ll. 60-63.
8. As systems are developed in the future, the data may be transmitted
directly from the originating accounting and tax preparation firms.
Col. 7, ll. 7-12; col. 11, ll. 27-31.
9. At the data cooperative or service bureau, the taxpayers’ tax returns
are converted to an electronic format suitable for retrieval by users
such as mortgage lenders, thereby enabling them to directly download
the complete tax return into their analysis software and/or credit
scoring software. Col. 6, ll. 2-7; col. 11, ll. 8-20.
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10. When specific taxpayers’ tax returns are requested by a mortgage
lender or 3rd party, a request form is filled out and faxed to the data
cooperative or service bureau, but future use of electronic requests is
envisioned. Col. 7, ll. 16-23; col. 11, 36-43.
ANALYSIS
Claims 1-5, 7, 11, 13, 35-37, 39 and 41
Simplification directs its arguments to independent claim 1, which is
representative of the group.
The Examiner finds that Baker describes electronically connecting a
tax information requestor (i.e., mortgage lender or 3rd party) to an electronic
intermediary (i.e., service bureau), and a tax data provider (i.e., tax
preparation firm) which electronically provides an electronic tax return
and/or tax data of a tax payer to the electronic intermediary (i.e., service
bureau). Ans. 4, citing col. 10, ll. 59-67; col. 11, ll. 15-20. The Examiner
also finds that Baker describes electronically collecting an electronic tax
return or tax data from the electronic intermediary (i.e., service bureau) such
that a tax information requestor (i.e., mortgage lender or 3rd party) performs
a check on the taxpayer using the electronically collected electronic tax
return or tax data. Ans. 4, citing col. 8, ll. 27-29, col. 9, ll. 14-15, col. 10, ll.
59-67; col. 11, ll. 3-20.
Simplification argues that Baker does not teach a “tax data provider”.
Simplification urges an interpretation of “tax data provider” based on the
definition in its Specification that “each party that has tax information
relevant to the taxpayer's tax liability or tax reporting obligations.” App. Br.
15, citing Spec. p. 9, ll. 21-22. Simplification argues that Baker’s
accounting and tax preparation firms are not tax data providers. App. Br. 16.
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There is no apparent dispute regarding the meaning of “tax data” in
the term “tax data provider”. We agree that “tax data” is “information
relevant to [a] taxpayer’s tax liability or tax reporting obligations.” App Br.
15; Spec. p. 9, ll. 21-22. Simplification does not dispute that the information
provided to Baker’s electronic intermediary (i.e., service bureau) by the tax
preparation firm is tax data. Indeed, Baker clearly describes transmitting tax
data in this way. Col. 8, ll. 21-24, 37-39; col. 10, l. 56-col. 11, l. 2. Instead,
Simplification’s arguments focus on the “provider” part of the term.
Simplification specifically argues that Baker’s accounting or tax preparation
firm cannot be a provider of tax data. App. Br. 15-16.
During prosecution claim terms are given the broadest reasonable
meaning of the words in their ordinary usage as they would be understood
by one of ordinary skill in the art. In re Morris, 127 F.3d 1048, 1054 (Fed.
Cir. 1997). “Absent claim language carrying a narrow meaning, [the claim
should only be limited] based on the specification or prosecution history
when those sources expressly disclaim the broader definition.” In re Bigio,
381 F.3d 1320, 1325 (Fed. Cir. 2004).
With respect to “tax data provider”, Simplification’s Specification
discloses:
The term "tax data provider" refers to each party that has tax
information relevant to the taxpayer's tax liability or tax
reporting obligations. Non-limiting examples of tax data
providers include the taxpayer's employers [], partnerships,
banks [], savings and loan institutions, mortgage institutions,
credit card bureaus, thrift institutions, security brokerage firms
[], mutual fund holding institutions, charities [], and federal,
state, local, and foreign taxing authorities []. Spec. p. 9, l. 21-
p.10, l. 3.
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Simplification’s “non-limiting examples” support the
Examiner’s position that the term “tax data provider” can include any
entity, person or machine that provides tax information relevant to the
taxpayer's tax liability or tax reporting obligations. Ans. 16. The
provider could reasonably be, for example, an accounting or tax
preparation firm, even though an accounting or tax preparation firm is
not listed in the “non-limiting examples” above. Baker’s accounting
or tax preparation firm is an entity that provides information relevant
to the taxpayer’s tax liability or tax reporting obligations since the
accounting and tax preparation firms electronically transmit
taxpayers’ tax returns from a database over the internet to a service
bureau. Col. 8, ll. 21-24, 37-39; col. 10, l. 56-col. 11, l. 2; fig. 1.
We are not persuaded by Simplification’s argument that Baker’s tax
preparation firm, for example, is not a “tax data provider” because it is not
the source of an individual taxpayer’s tax information and does not have a
separate legal obligation to report and assure the veracity of the tax
information. App. Br. 16. The argument is not commensurate in scope with
the claim limitations. Claim 1 recites a “tax data provider”. As explained
before “a tax data provider” is defined as each party that has tax information
relevant to the taxpayer's tax liability or tax reporting obligations. Claim 1
does not recite or require the “tax data provider” to be the tax information
source or to have separate legal obligations, e.g., a bank or employer. The
claimed tax data provider need not be one of Simplification’s tax providers
listed in its Specification. The Specification merely provides a list of “non-
limiting examples of tax data providers”. See Spec. p. 9, l. 22-p. 10, l. 3. In
any event, and contrary to Simplification’s arguments that the tax data
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provider must have a legal obligation to assure the veracity of the tax
information, Baker describes that data from the professional tax preparer has
not been altered in a fraudulent manner (Col. 5, ll. 60-63; col. 6, ll. 7-20) and
Simplification has failed to direct us to supporting evidence to demonstrate
otherwise. Argument of Counsel can not take the place of evidence lacking
in the record. Meitzner v. Mindick, 549 F.2d 775, 782 (CCPA 1977); see
also In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974).
Next, Simplification argues that Baker’s accounting firm or tax
preparation firm cannot be considered a “tax data provider” because it would
unreasonably merge the separately defined and distinct entities of a “tax data
provider”, a “tax payer” and a “tax return preparer institution” disclosed in
Simplification’s Specification. App. Br. 18; Reply Br. 8-10.
Simplification has not directed us to where in its Specification it
expressly disclaims a broader interpretation of a “tax data provider” that
would exclude a taxpayer or a tax preparation institution. Moreover, the
mere fact that Simplification describes in its Specification a taxpayer and a
tax preparer institution with figures and text that are separate from figures
and text describing a tax data provider does not foreclose a taxpayer or a tax
preparer institution from also being a tax data provider. Even by
Simplification’s own examples in its Specification, it discloses a partnership
as an example of both taxpayers and tax data providers. See Spec. p. 9, ll.
17-24. Thus, by Simplification’s own description there is expressly some
overlap of who can be a taxpayer and who can be a tax data provider. As
described, a partnership can be both depending on the type of data that is
held by the partnership.
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Nor are we persuaded by Simplification’s argument that it would be
unreasonable to consider tax preparation firms to be tax data providers
because such an interpretation would impermissibly exclude embodiments
or statements made in the instant Specification. App. Br. 17-18; Reply Br.
8-10. The argument has not been sufficiently explained within the context
of claim 1. Simplification has not demonstrated, for example, that claim 1
necessarily covers or need be consistent with all embodiments described in
its Specification. Indeed, Simplification argues, at another point in the
Appeal Brief, that claim 1 does not include or encompass every described
embodiment in its Specification. App. Br. 21. Because Simplification has
not meaningfully explained the significance of this argument in the context
of the claimed invention, the argument necessarily fails.
Simplification’s additional arguments that various positively recited
features/steps/entities in the claims are improperly disregarded (App. Br. 18)
are conclusory and unpersuasive. Simplification reproduces claim 1 and
without any meaningful explanation asserts that each feature and/or
specifically defined entity recited in the claims imparts some functionality
and must be afforded patentable weight. App. Br. 18-19. Simplification
also argues that the recitation of a “tax data provider” affects the structure
and functionality of the claimed invention based on a hypothetical
infringement example. App. Br. 19. Simplification’s arguments do not
provide a meaningful explanation of how the recitation of a “tax data
provider” affects the structure and functionality of the claimed invention or
how the hypothetical example of infringement is even relevant in this
particular case to how the claims should be interpreted during prosecution.
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Simplification does not present arguments separately addressing the
limitations of claims 2-5, 7, 11, 13, 35-37, 39 and 41. App. Br. 19, 25;
Reply Br. 10. For all these reasons, we sustain the rejection of claims 1-2, 4-
5, 7, 11, 13, 35-37, 39 and 41 as anticipated by Baker and the rejection of
claim 3 as obvious over Baker.
Claims 42, 44, 45, 47, 48 and 50
Simplification directs its arguments to independent claims 42, 45 and
48. Claim 42 is representative of the group. 37 C.F.R. § 41.67(c) (1)(vii).
Claim 42 recites: “connecting electronically said tax information requestor
to a tax data provider . . . ; and performing a check of said taxpayer by said
tax information requestor using said electronic tax return or tax data
collected electronically . . . .”
The Examiner determines that claim 42 is sufficiently broad such that
the claim reads on different elements described in Baker. For example, in
one instance, the Examiner finds that Baker’s 3rd party requestor corresponds
to the claimed “tax information requestor” and Baker’s tax preparation firm
corresponds to the claimed “tax data provider”. Ans. 5. Simplification
again argues against the Examiner’s findings that Baker’s 3rd party requestor
corresponds to the claimed “tax information requestor” and Baker’s tax
preparation firm corresponds to the claimed “tax data provider”. Since we
have not been persuaded by Simplification’s arguments previously made in
that regard, we need not address Simplification’s arguments based on the
alternative findings made by the Examiner, e.g., that Baker’s service bureau
corresponds to the tax information requestor.
In addition to the arguments directed to claims 1-5, 7, 11, 13, 35-37,
39 and 41 that have already been addressed regarding whether a tax
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preparation firm is a tax data provider, Simplification argues that claim 42
requires a direct electronic connection and cannot be reasonably interpreted
to include an intermediary. App. Br. 20-21; Reply Br. 11-12. In essence,
Simplification argues that because Baker’s service bureau is located between
Baker’s tax preparation firm and Baker’s 3rd party requestor, Baker does not
anticipate claim 42.
In support of the argument, Simplification explains that its
Specification discloses that the tax data provider and the tax data requestor
are connected according to the following three embodiments: (1) an
electronic connection through an intermediary; (2) a direct electronic
connection; and (3) both a direct electronic connection and an electronic
connection through an intermediary. App. Br. 20-21. Simplification argues
that claim 42 is limited to embodiment 2. Reply Br. 12.
Simplification’s arguments are not commensurate in scope with the
claim limitations. Claim 42 neither recites a direct connection, nor does the
claim language preclude an intermediary. Claim 42 is open-ended since it
utilizes the transitional phrase “comprising”, therefore additional elements,
besides those explicitly recited can be included within the scope of the
claim, such as an intermediary. We also broadly interpret “connecting
electronically” because claim terms are given the broadest reasonable
meaning during prosecution. Morris, 127 F.3d at 1054. Similar to the
Examiner’s findings (Ans. 5), the broadest reasonable meaning of
“connecting electronically” encompasses at least a direct electronic
connection and an indirect electronic connection (i.e., through an
intermediary such as Baker’s service bureau). Simplification does not direct
us to a disclaimer of the broader meaning. Contrary to Simplification’s
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arguments, the scope of claim 42 covers all three of Simplification’s
embodiments, including embodiment 1, since claim 42 is open ended, is not
limited to a direct electronic connection and does not preclude an
intermediary.
Moreover, we are not persuaded by Simplification’s arguments that
interpreting claim 42 to include an intermediary is unreasonable based on the
concept of claim differentiation. We decline to interpret claim 42 to cover
only embodiment 2 and exclude embodiments 1 and 3 because “[a]
particular embodiment appearing in the written description may not be read
into a claim when the claim language is broader than the embodiment.”
Super Guide Corp. v. DirecTV Enterprises, Inc., 358 F.3d 870, 875 (Fed.
Cir. 2004). Contrary to Simplification’s arguments, the concept of claim
differentiation does not mean that an independent claim should be construed
to exclude a limitation added by a dependent claim (i.e., an intermediary).
Rather, claim differentiation is “the presumption that an independent claim
should not be construed as requiring a limitation added by a dependent
claim.” Curtiss-Wright Flow Control Corp. v. Velan Inc., 438 F.3d 1374,
1380 (Fed. Cir. 2006) (emphasis added), (citations omitted).
In any event, to the extent that claim 42 requires a direct connection,
which we find that it does not, Baker describes that tax data can be directly
dispatched to a mortgage lender or other 3rd party end user (i.e., tax
information requestor) from the accounting and tax preparation firms (i.e.,
tax data provider). Col. 7, ll. 7-12; col. 11, ll. 27-31.
Simplification does not present additional arguments separately
addressing the limitations of dependent claims 44, 47 and 50. App. Br. 22;
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Reply Br. 12. For all these reasons, we sustain the rejection of claims 42,
44, 45, 47, 48 and 50 as anticipated by Baker.
Claims 6, 38, 40, 43, 46 and 49 – the obviousness rejection
Claims 6, 38, 40, 43, 46 and 49 are dependent on independent claims
1, 11, 13, 42, 45 and 48, respectively. Simplification directs its arguments to
claim 6 which is representative. App. Br. 26-27. Claim 6 further limits the
tax data provider to the taxpayer’s employer, partnership, bank, savings and
loan institution, mortgage institution, credit card bureau, thrift institution,
securities brokerage firm, mutual fund holding institution, charity; the
Internal Revenue Service; or a taxing authority.
The Examiner finds that Baker describes relying on the receipt of tax
data from an accounting or tax preparation firm to store and sell data
warehoused at the service bureau. Ans. 8. The Examiner takes Official
Notice of the fact that it was old and well known in the art of tax preparation
to utilize tax data received from a tax payer’s employer, bank, mortgage
institution, etc. Ans. 8. The Examiner determined that it would have been
obvious to one with ordinary skill in the art at the time the invention was
made to modify Baker to receive tax data from a taxpayer’s employer, bank,
mortgage institution, etc., in order to expand the type of details made
available through the service bureau data warehouse, thereby increasing the
potential interest in and marketability of the type of stored data. Ans. 8.
Simplification argues that even if it was well known to utilize data
received from “tax data providers” of the form specified in claim 6, it was
not well known in the art for these “tax data providers” to electronically
provide an electronic tax return or tax data to a tax information requestor.
App. Br. 28. Simplification also argues that the teachings of Baker and the
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officially noticed facts are insufficient to support the conclusion of
obviousness. App. Br. 28.
Simplification does not direct us to objective evidence to support its
argument that it was not well known in the art for “tax data providers” of the
form specified in claim 6 to electronically provide an electronic tax return or
tax data to a tax information requestor. Arguments of Counsel can not take
the place of evidence lacking in the record. Meitzner, 549 F.2d at 782; see
also In re Pearson, 494 F.2d at 1405. Further, it is not necessary to find
precise teachings in the prior art directed to the specific subject matter
claimed because inferences and creative steps that a person of ordinary skill
in the art would employ can be taken into account. KSR Int’l Co. v. Teleflex
Inc., 550 U.S. 398, 418 (2007). A person of ordinary skill is also a person of
ordinary creativity and is presumed to have skills apart from what the prior
art references explicitly say. Id. at 421, see In re Sovish, 769 F.2d 738, 743
(Fed. Cir. 1985). Since it was old and well known in the art of tax
preparation to utilize data received from one of the tax data providers of the
form specified in claim 6, at the time the invention was made, one with
ordinary skill in the art and ordinary creativity would have recognized that
any of the tax data providers of the form specified in claim 6 could have
been utilized in addition to, or in place of, Baker’s accounting and tax
preparation firms to electronically provide tax data to the service bureau and
3rd party tax data requestor. As explained by the Examiner, a person of
ordinary skill in the art would have been motivated to modify the teachings
of Baker to include the tax data providers of the form specified in claim 6 in
order to expand the type of details made available through the service bureau
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data warehouse and increase the potential interest in and marketability of the
type of stored data. Ans. 8.
Last, Simplification argues that Baker teaches away from utilizing a
tax data provider of the form specified in claim 6, and argues that it would
be contradictory to Baker’s core principle of operation. App. Br. 28-29.
Simplification argues that Baker clearly teaches that tax data is only
provided by accounting and tax preparation firms, which represents a very
material difference from all prior art. App. Br. 28-29, citing Baker col. 2, ll.
33-38.
Simplification’s arguments too narrowly focus on the teachings of
Baker. The Examiner relies on Baker for the general teaching of receiving
tax data from a tax data provider in order to store and sell tax data that is
warehoused at the service bureau. Ans. 8. Baker’s teachings are not limited
to the particular types of tax data providers disclosed, but are applicable to
additional tax data providers such as a tax payer’s employer, bank, mortgage
institution, etc., since it was well known in the art of tax preparation to
utilize tax data received from a tax payer’s employer, bank, mortgage
institution, etc. See Ans. 8. The use of patents as references is not limited to
what the patentees describe as their own inventions or to the problems with
which they are concerned, as they are a part of the literature and are relevant
for all they contain. In re Heck, 699 F.2d 1331, 1333 (Fed. Cir. 1983), citing
In re Lemelson, 397 F.2d 1006, 1009 (CCPA 1968). Moreover, and contrary
to Simplifications arguments that tax data is only provided by accounting
and tax preparation firms, Baker’s teachings are not limited to only
accounting and tax preparation firms serving as tax data providers. Baker
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also describes that a law firm provides the same tax data as the accounting
and tax preparation firms. Fig. 4.
For all these reasons, we sustain the rejection of claims 6, 38, 40, 43,
46 and 49 as obvious over Baker. Since we sustain the rejection of claims 6,
38, 40, 43, 46 and 49 as obvious over Baker we need not and do not address
the rejection of claims 6, 38, 40, 43, 46 and 49 as anticipated by Baker.
DECISION
We AFFIRM the rejection of claims 1, 2, 4-5, 7, 11, 13, 35-37, 39, 41,
42, 44, 45, 47, 48 and 50 under 35 U.S.C. § 102(e) as anticipated by Baker.
We AFFIRM the rejection of claims 3, 6, 38, 40, 43, 46 and 49 under
35 U.S.C. § 103(a) as unpatentable over Baker.
TIME PERIOD
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) (2009).
ORDER
AFFIRMED

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