Ex Parte Myr

Patent Trial and Appeal Board

Sep 27, 2016

10867729 (P.T.A.B. Sep. 27, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
10/867,729 06/16/2004
3000 7590 09/29/2016
CAESAR RIVISE, PC
7 Penn Center, 12th Floor
1635 Market Street
Philadelphia, PA 19103-2212
FIRST NAMED INVENTOR
DavidMyr
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
M1362/20003 5546
EXAMINER
APPLE, KIRSTEN SACHWITZ
ART UNIT PAPER NUMBER
3694
NOTIFICATION DATE DELIVERY MODE
09/29/2016 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
patents@crbcp.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID MYR
Appeal2014-003875
Application 10/867, 729 1
Technology Center 3600
Before HUBERT C. LORIN, ANTON W. PETTING, and
JOSEPH A. FISCHETTI, Administrative Patent Judges.
LORIN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
David Myr (Appellant) seeks our review under 35 U.S.C. § 134 of the
final rejection of claims 22 and 23. We have jurisdiction under 35 U.S.C.
§ 6(b) (2002).
SUMMARY OF DECISION
We AFFIRM.
1 The Appellant identifies Makor Issues and Rights Ltd. as the real party in
interest. App. Br. 1.
Appeal2014-003875
Application 10/867,729
THE INVENTION
Claim 22, reproduced below, is illustrative of the subject matter on
appeal.
22. A system, for executing foreign exchange currencies transactions,
the system comprising:
a server for receiving a buy trading order from a first trading
platform and a sell trading order from a second trading platform,
said buy trade order is for buying currency in a currency
exchange transaction using a first exchange rate, said sell trade order
is for selling currency in a further currency exchange transaction using
a second exchange rate, said currency exchange transaction and said
further currency exchange transaction are for exchanging money
between two different currencies,
said server:
executes said buy trade order and buys said currency in
said currency exchange transaction when said first exchange rate is
higher than or equal to said second exchange rate,
or
executes said sell trade order and sells said currency in
said further currency exchange transaction when said second
exchange rate is lower than or equal to said first exchange rate
wherein when said server executes said buy trade order or said
sell trade order, said currency exchange transaction and said further
currency exchange transaction are the same currency exchange
transaction,
wherein said buy trade order or said sell trade order are
automatically executed when said first exchange rate is higher than or
equal to said second exchange rate or when said second exchange rate
is lower than or equal to said first exchange rate.
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Appeal2014-003875
Application 10/867,729
THE REJECTIONS
The Examiner relies upon the following as evidence of
unpatentability:
Rutman
Sandhu et al.
("Sandhu")
Sellberg et al.
("Sellberg")
US 2004/0210504 Al
US 6,347,307 Bl
US 8,027,901 B2
The following rejections are before us for review: 2
Oct. 21, 2004
Feb. 12,2002
Sep.27,2011
1. Claims 22 and 23 are rejected under 35 U.S.C. §103(a) as being
unpatentable over Sandhu, Sellberg, and Rutman.
ISSUES
Did the Examiner err in rejecting claims 22 and 23 under 35 U.S.C.
§ 103(a) as being unpatentable over Sandhu, Sellberg, and Rutman?
FINDINGS OF FACT
We rely on the Examiner's factual findings stated in the Answer.
Additional findings of fact may appear in the Analysis below.
ANALYSIS
2 An Amendment was filed on May 14, 2013, cancelling claims 1-21 and
amending claims 22 and 23 was entered. See Examiner's Communication,
mailed June 12, 2013.
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Appeal2014-003875
Application 10/867,729
The rejection of claims 22 and 23 under 35 U.S.C. §103(a) as being
unpatentable over Sandhu, Sellberg, and Rutman.
The Appellant argues that "Applicant's intention is to create a system
for foreign currency exchange where the exchange rate is set within the
system and is not provided from an external source." App. Br. 2. Claim 22
is not so limited. According to claim 22, a buy trade order for buying
currency in a currency exchange transaction "us[ es] a first exchange rate"
and a sell trade order for selling currency in a further currency exchange
transaction "us[ es] a second exchange rate." Claim 22 puts no limit on the
source of the first and second exchange rates.
The Appellant argues that "it is Applicant's intention for the
conversion rate to be established based on the 'buy' price and 'ask' price of
the parties which are entering the transaction." App. Br. 2-3. We do not see
that in the claim. Nothing in the claim requires a conversion rate to be
established based on the "buy" price and "ask" price of the parties which are
entering the transaction. As already stated, claim 22 puts no limit on the
source of the first and second exchange rates. Thus, claim 22 puts no limit
on the source of the conversion rate.
The Appellant argues that
Sandhu, however, has nothing to do with Appellant's claimed feature
of 'executes when said buy trade order ... is higher than or equal to
said second exchange rate ... executes said sell trade order ... when
said second exchange rate is lower than or equal to said first exchange
rate ... "
App. Br. 4. We disagree. Sandhu is clearly relevant as it discloses a Foreign
Exchange Spot (Forex Spot) (see col. 11, lines 14--20). Forex Spots are
known for buying one currency and selling another. See Specification, 2--4.
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Appeal2014-003875
Application 10/867,729
To the extent the Appellant is arguing that Sandhu does not show buying at a
higher exchange rate (and selling at a lower exchange rate), it would have
been obvious in view of Sellberg. See Sellberg, e.g., col. 3, lines 52-57:
The trader may continuously follow the updated exchange rates in
order to also be capable to initiate an order depending on the current
exchange rate, i.e. a favorable exchange rate may encourage the
initiation of an order, whereas a less favorable exchange rate may
restrain the initiation of the order.
The Examiner made this finding in the Final Rejection (pages 4--5) with
respect to then-pending claim 1 and the evidence supports it.
The Appellant argues that
in Sellberg, the buy/sell trade order occurs based on a market rate.
The buy/sell trade order is not initiated by a buy order or a sell order
having a certain exchange rate ....
The feature of performing a trade based on the prices
communicated from the respective trading platforms is neither
disclosed nor suggested by Sellberg. In Sellberg, the currency
conversion rate is externally obtained, and the trade order occurs
irrespective of currency rates associated with the buy and sell trade
orders.
App. Br. 4. The argument is not commensurate in scope with what is
claimed. As already stated, nothing in the claim forecloses using external
market rates as the "first exchange rate" and "second exchange rate." Claim
22 is directed to the concept of currency trading. Claim 22 spells out a
scheme for practicing said concept that involves executing a buy and sell
trades for foreign currency depending on the relationship between two
exchange rates. Claim 22 does not limit the source of those rates and
therefore it covers market rates.
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Appeal2014-003875
Application 10/867,729
Finally the Appellant argues that the cited references do not disclose
"automatically executing." We disagree for all the reasons given by the
Examiner. See Final Rejection 8-9; see also Answer 11.
The Appellant argues that the Examiner's reasoning in modifying
Sandhu in light of Rutman to reach the claimed "automatically executing"
would remove critical steps in Sandhu, rendering Sandhu's invention
inoperable, thereby supporting a conclusion of nonobviousness for the
claimed subject matter. The argument is unpersuasive as to error in the
rejection. The Appellant argues that Sandhu requires negotiation that, when
trades are automatically executed as claimed, it would be unable to perform.
By citing Rutman, the Official Action argues that automatic
trade execution is disclosed. If the primary reference, however,
REQUIRES negotiation and the primary reference is modified to
perform automatic execution, then the primary reference will not be
able to function as intended.
App. Br. 7. The difficulty with the argument is that the automatic execution
as claimed does not preclude negotiation. There is no basis in the
Specification or in view of its ordinary usage for interpreting "automatically
executing" as claimed to mean that no negotiation is allowed. Claim 22
requires no more than to automatically execute "buy trade order or said sell
trade order ... when said first exchange rate is higher than or equal to said
second exchange rate or when said second exchange rate is lower than or
equal to said first exchange rate." The argument is unpersuasive as to error
in the rejection because it is not commensurate in scope with what is
claimed.
The remaining arguments are unpersuasive.
The rejection is sustained.
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Appeal2014-003875
Application 10/867,729
DECISION
The decision of the Examiner to reject claims 22 and 23 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)(l )(iv).
AFFIRMED
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