Ex Parte Miller et al

Patent Trial and Appeal Board

Nov 29, 2017

12759189 (P.T.A.B. Nov. 29, 2017)

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.
12/759,189 04/13/2010 Michael A. Miller 9610-97703-US 6497
109813 7590 11/29/2017
Fitch, Even, Tabin & Flannery, LLP
120 South LaSalle Street
Suite 1600
Chicago, IL 60603-3406
EXAMINER
COLLINS, MICHAEL
ART UNIT PAPER NUMBER
3651
MAIL DATE DELIVERY MODE
11/29/2017 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 PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte MICHAEL A. MILLER, PAUL SCHINDELAR,
NATHANIEL J. HEDTKE, FRANK GUZZONE,
MALCOLM MCALPINE, and BRIAN SOBECKS
____________________

Appeal 2016-008386
Application 12/759,189
Technology Center 3600
____________________

Before ELENI MANTIS MERCADER, TERRENCE W. McMILLIN, and
MATTHEW J. McNEILL, Administrative Patent Judges.

MANTIS MERCADER, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1–
10, 12, 13, and 15–20. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

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CLAIMED SUBJECT MATTER
The claimed invention is directed to a vending machine presenting an
opportunity to select a combination purchase from among a plurality of
machines. Spec. para. 77. The display for the first vending machine can
present the customer with the aggregated purchasing opportunities for all of
vending machines. Id. “The customer, in turn, can make selections from
this aggregation, and can pay for these selections while at this one machine.
Id. The customer can then visit the other machines to retrieve their
purchases.” Id.
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A vending apparatus comprising:
a housing containing products available to be vended via the
vending apparatus;
a vended-product delivery area accessible via a front surface of
the housing;
a video display configured to present dynamic content via the
front surface of the housing, at least a portion of the dynamic
content being responsive to interaction with a customer at the
vending apparatus, the video display having a display area that
is by size at least seventy percent of the front surface of the
housing;
a payment interface supported by the housing; and
a control circuit operably coupled to the payment interface and
contained within the housing and configured to offer to a
customer at the vending apparatus at least one product that, in
response to being selected for purchase by the customer via the
vending apparatus, will be vended by at least one additional
vending apparatus having its own payment interface.

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REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Ruskin
Blust
ROH
Segal
US 6,367,653 B1
US 2004/0254676 A1
US 2009/0313125 A1
US 2010/0100236 A1
Apr. 9, 2002
Dec. 16, 2004
Dec. 17, 2009
Apr. 22, 2010

REJECTIONS
Claims 1–7, 13, and 15–20 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over ROH in view of Ruskin.
Claims 8–10 and 12 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over ROH in view Segal and further in view of Blust.

ANALYSIS
We adopt the Examiner’s findings in the Answer and Final Action and
we add the following primarily for emphasis. We note that if Appellants
failed to present arguments on a particular rejection, we will not unilaterally
review those uncontested aspects of the rejection. See Ex parte Frye, 94
USPQ2d 1072, 1075 (BPAI 2010) (precedential); Hyatt v. Dudas, 551 F.3d
1307, 1313–14 (Fed. Cir. 2008) (The Board may treat arguments Appellants
failed to make for a given ground of rejection as waived).
Claims 1–7, 13, and 15–20
Appellants first argue that their vending machine has a payment
interface where “‘two or more such machines’” can be networked to permit
the consumer to select a product to be vended from a machine other than the
machine where payment is made (App. Br. 10). Appellants assert that unlike
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Ruskin, their invention allows for “paying at one machine while vending a
product at a second machine notwithstanding that the second machine has a
payment interface that could have been used to accept the consumer’s
payment” (App. Br. 10).
We do not agree. One cannot show nonobviousness by attacking
references individually where the rejections are based on combinations of
references. In re Keller, 642 F.2d 413, 426 (CCPA 1981); In re Merck &
Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). The Examiner relied on ROH
for the teaching of a vending apparatus with a “‘payment interface’”/‘“user-
input interface’” and an additional vending apparatus with a “‘payment
interface’”/“‘user-input interface’”: “‘100-1’”-“‘100-3’” and “‘200-1’”-
“‘200-3’” (Ans. 4 see Fig. 8 and paras. 5–8, 64, 72, 82, and 88). The
Examiner then relied on Ruskin for teaching a vending apparatus having a
vended-product delivery area accessible via a front surface of the housing
(see Figure 10) where the purchase is made and a control circuit is further
configured to offer to a customer at the vending apparatus at least one
product that, in response to being selected for purchase by the customer via
the vending apparatus, will be vended by the at least one additional vending
apparatus (see Final Rej. 5; Figure 10 and col. 8 ll. 10–34). Thus, we agree
with the Examiner that the combination of the teachings would result in
paying at one machine while vending a product at a second machine as
taught by Ruskin notwithstanding that the second machine has a payment
interface as taught by ROH (App. Br. 10).
In KSR, the Supreme Court held that “if a technique has been used to
improve one device, and a person of ordinary skill in the art would recognize
that it would improve similar devices in the same way, using the technique is
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obvious unless its actual application is beyond his or her skill.” See KSR
Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). The Supreme Court has
also determined the conclusion of obviousness can be based on the
interrelated teachings of multiple patents, the effects of demands known to
the design community or present in the marketplace, and the background
knowledge possessed by a person having ordinary skill in the art. Id. at 418.
The skilled artisan is “a person of ordinary creativity, not an automaton.” Id.
at 421. Appellants have not presented any evidence demonstrating that the
modification would have been “uniquely challenging or difficult for one of
ordinary skill in the art.” See Leapfrog Enters., Inc. v. Fisher-Price, Inc.,
485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418).
Accordingly, we affirm the Examiner’s rejection of claim 1 and for
the same reasons the Examiner’s rejection of claims 2–7, 13, and 15–20 not
argued separately.
Claims 8–10 and 12
Appellants argue that while Blust teaches a plurality of dispensing
ports 46, these dispensing ports are part of a single housing 18 and share a
common pool of inventory and a common retrieval system (App. Br. 11).
Appellants argue that their two (or more) vending apparatuses each contain
their own selection of products and claim 8 requires that “‘the at least one
additional vending apparatus containing further products available to be
vended’” (App. Br. 11).
Appellants further argue that while they do not disagree that Blust
teaches a reservation mechanism, Blust does not suggest that the consumer
can pick up their reserved item at other than the original location where they
made their reservation (App. Br. 12–13).
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We do not agree. The Examiner finds, and we agree, that ROH
teaches vending machines “‘100-2’” and “‘100-3’” functioning as “‘the at
least one additional vending apparatus containing further products available
to be vended’” limitation (Ans. 6). We also agree with the Examiner’s
finding in the Final Action that Ruskin teaches a distribution pocket in the
front of the vending machine and an auxiliary vending machine in order to
provide additional product options available for vending upon their purchase
(see Final Act. 5 citing col. 8, ll. 10–34). Even if different options were
claimed we note that Ruskin explicitly teaches that “[s]ome messages may
tout special packages combining a food item from the principal machine
with a drink from the auxiliary machine at a reduced price”, thereby teaching
that the auxiliary machine provides additional and different products for
purchase (see col. 8, ll. 10–34).
We further agree that dispensing ports “46” in Blust also disclose
“‘the at least one additional vending apparatus containing further products
available to be vended’” (Ans. 6). In Blust each user station (22) provides a
user interface which enables a user to use a first interface at a first station
(22) having its own vending apparatus (46) to reserve an item “if the
particular item(s) is not available at the time of the visit” (Ans. 6–7 citing
Figs. 1 A, 23, and para. 103). Thus, a user could return to a second different
interface at a second different station (22) having its own vending apparatus
(46) to pick up the previously reserved item, i.e., there is prior art vending
structure to “‘offer to a customer at the vending apparatus at least one
product that, in response to being selected for purchase by the customer via
the vending apparatus, will be vended by the at least one additional vending
apparatus’” (Ans. 7). The Examiner explains, and we agree, that “a user
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could use the left side interface with the first vending apparatus (46) in
Figure 23 to reserve the item and the right side interface with the additional
vending apparatus (46) in Figure 23 to pick-up the item” (Ans. 7).
Accordingly, we affirm the Examiner’s rejection of claim 8 and for
the same reasons the rejections of claims 9, 10, and 12 not argued separately.

DECISION
The Examiner’s rejection of claims 1–10, 12, 13, and 15–20 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).

AFFIRMED