Ex Parte Nassiri

Patent Trial and Appeal Board

Jun 24, 2014

10132970 (P.T.A.B. Jun. 24, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte NICHOLAS NASSIRI
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Appeal 2012-002272
Application 10/132,970
Technology Center 3600
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Before JOSEPH A. FISCHETTI, NINA L. MEDLOCK, and
JAMES A. WORTH, Administrative Patent Judges.

WORTH, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1, 5, 24–26, 28, 30, 32, and 70–87, which constitute all
the claims pending in this application. 1, 2 We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

1 We refer to the Appeal Brief (filed May 23, 2011, hereinafter “Br.”), the
Final Rejection (mailed May 5, 2010, hereinafter “Final”), and the
Examiner’s Answer (mailed Aug. 18, 2011, hereinafter “Ans.”) for the
respective positions of Appellant and the Examiner.
2 The real party in interest identified by Appellant is inventor Nicholas N.
Nassiri. Br. 1.
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Introduction
Appellant’s disclosure relates to an on-line auction using a computer
network that allows for real-time interaction using a simulated representation
of an auctioneer. Spec. 9, ll. 17–20.
Claims 1, 5, 70, 71, 74, and 75 are the independent claims on appeal.
Claim 1, below, is illustrative of the claimed subject matter:
1. A system for conducting an auction comprising:
a computer network; the computer network comprising:
a host web server,
an auction information server,
an auction server,
a visually and audibly simulated representation of an
auctioneer rendered by a computer software application;
wherein said simulated representation of an auctioneer is
configured to conduct said auction by moving and speaking
dialog to said a user during said auction; wherein said speaking
dialog to said user comprises promoting the advantages of an
auction item and encouraging said user to bid on said auction
item;
a plurality of remote computers, and
a communication network connecting the plurality of
remote computers to the computer network; and
wherein:
the plurality of remote computers are configured to
access a website;
the plurality of remote computers are configured to
establish connectivity with the host web server by way of the
website;
the plurality of remote computers are configured to
register to qualify to participate in the auction by way of the
website;
the host web server is configured to qualify and grant the
plurality of remote computers access to participate in the
auction;
the host web server is configured to establish real-time
connectivity with the plurality of remote computers;
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the host web server is configured to display to the
plurality of remote computers a real-time, live-stream broadcast
signal;
the plurality of remote computers are configured to input
electronic data in response to the broadcast signals from the
host web server;
the auction server is configured to receive, validate and
process in a ranked order the electronic data originating from
the plurality of remote computers;
the host web server is configured to simultaneously
broadcast real-time to the plurality of remote computers the
electronic data originating from anyone of the plurality of
remote computers;
the host web server is configured to determine when the
electronic data originating from any one or all of the plurality of
remote computers has ceased;
the auction server is configured to determine which of the
plurality of remote computers sent the most recent submission
of the electronic data; and
the host web server is configured to broadcast real-time
to the plurality of remote computers a status of the cessation of
the electronic data entry wherein the status broadcasts a
winning bid input by the electronic data.

App. Br., Claims App’x.
Prior Art Relied Upon
Laster US 2001/0029478 A1 Oct. 11, 2001
Hauk US 2003/0126068 A1 Jul. 3, 2003
Rejections On Appeal
The Examiner maintains, and the Appellant appeals, the following
rejection:
Claims 1, 5, 24–26, 28, 30, 32, and 70–87 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Laster in view of Hauk.
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ANALYSIS

Appellant argues with respect to all claims that the Examiner’s
statement of the motivation to combine references was “conclusory.” Br. 7–
8 (citing KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398 (2007); In re Kahn, 441
F.3d 977 (Fed. Cir. 2006)). We disagree; in our view, the Examiner has
provided the requisite articulated reasoning with rational underpinning
required to support the legal conclusion of obviousness. See KSR Int'l Co. v.
Teleflex Inc., 550 U.S. 398, 418 (2007).
The Examiner finds that the invention is the predictable use of prior
art elements according to their established functions and captures the
benefits inherent in those capabilities. Ans. 9 (citing KSR, 550 U.S. at 417).
Further, the Examiner finds that there would have been a motivation to
combine Laster and Hauk “allowing for more advanced and user-friendly
interaction between the auctioneer and the bidder.” Ans. 6. We agree with
the Examiner that Hauk itself teaches that a user-friendly interface provides
“an interactive experience.” Hauk ¶ 6. The Specification also explains that
an interactive experience is one of the purposes of the invention. Spec. 9,
ll. 17–20. Therefore, this purpose constitutes a motivation to combine.
See In re Kahn, 441 F.3d at 988 (considering motivation in terms of the
problem confronted by the inventor).
Appellant further argues that there is objective evidence of
nonobviousness. Appellant contends that the invention addresses an
unknown problem. Br. 7 (citing In re Omeprazole Patent Litigation,
536 F.3d 1361 (Fed. Cir. 2008)). Appellant argues the invention recognizes
that auction time, frequent login requirements, and relatively infrequent
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price updates reduce bidder engagement and bidder attention, and that the
overall emotional content of the auction is lost. Br. 7, 10. The Examiner
responds that the claims do not recite any claim limitations concerning
length of time or login procedures (although the claims do recite limitations
concerning real-time transmission of data and a simulated representation of
an auctioneer), that the Appellant was not the first inventor to realize the
need to make processes faster, and that the problem of maintaining the
bidder’s attention and engagement is subjective. Ans. 11–12. We agree
with, and adopt the Examiner’s findings and rationale. As described above,
Hauk appreciated the need for a simulated representation of an auctioneer
and for an interactive experience. Hauk ¶ 6.
Appellant further contends that the invention possesses a property not
present in the prior art. Br. 7, 11 (citing In re Papesch, 315 F.2d 381
(CCPA 1963)). Appellant argues that none of the cited prior art references
is capable of providing a real-time auction with a virtual auctioneer that can
conduct the auction by moving and speaking to each of the users. Id. at 11.
However, it is not necessary for this property (or set of properties) to be
present in a single reference because it is present in the combination of
references. In this regard, we agree with, and adopt the Examiner’s findings
set forth at pages 6–7 of the Answer. This is not a case as in In re Papesch,
315 F.2d 381, 392 (CCPA 1963), where unexpected results could render a
compound nonobvious.
Appellant further argues that the Examiner’s proposed modification of
Laster by incorporating the trader images from Hauk would render both
systems unsatisfactory for their intended purpose. We agree with the
Examiner that the simulated representation of an auctioneer of Hauk would
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not be inconsistent with the Laster method of bidding. See generally In re
Yamamoto, 740 F.2d 1569, 1573 (Fed. Cir. 1984) (claim obvious even if the
features of one reference cannot be substituted physically into the structure
of the other reference).
Claims 1, 24, 26, 32, and 70–87
Appellant argues that the prior art fails to describe the claim limitation
of “promoting advantages” of an auction item and encouraging a user to bid
on an auction item (see claims 1, 24, and 26), or “extol virtues of different
aspects of an auction item” (see claims 82–87). See Br. 12.3 Instead, we
agree with, and adopt the Examiner’s findings at pages 13–14 of the
Answer. In particular, we note that Figure 16 of Laster describes an
interface that promotes interest, extols the virtues of an item, and solicits
bids through puffery.
Claims 76–87
Appellant argues that the prior art fails to describe the claim limitation
of “speak a user’s name.” Br. 13. Instead, we agree with, and adopt the
Examiner’s findings at pages 14–15 of the Answer. In particular, we
observe that this limitation is met by the combination of references because
paragraph 151 of Laster communicates a user’s name and paragraphs 10 and
49 of Hauk use audio to simulate an auction.
Claim 72
Appellant argues that the prior art fails to describe the claim limitation
of “personal information.” Br. 13–14. Appellant argues that Laster fails to
describe a simulated representative and argues that Hauk fails to describe a
software mechanism to communicate personal information. Id. Instead, we

3 Claims 32 and 70–81 do not contain the limitation as such.
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agree with, and adopt the Examiner’s response to Appellant’s argument at
page 15 of the Answer. We agree with the Examiner that the application
does not provide a special definition of “personal information.” An account
number, customer id, and phone number, as disclosed in Laster (see Laster
¶¶ 0216–0217), constitute “personal information,” within the ordinary and
customary meaning of that term.
As to Appellant’s argument that Laster fails to disclose a “simulated
representation of an auctioneer,” the avatar of Hauk, which the Examiner
combines with Laster, represents a simulated representation of an auctioneer.
Hauk ¶ 6.
Claims 30, 32, 70, 71, 74, and 75
Appellant argues that the prior art fails to describe the claim limitation
of “soliciting bids” for a specific auction item. Br. 14. However, we agree
with, and adopt the Examiner’s findings at pages 15–16 of the Answer. In
particular, we note that Laster solicits bids through a dialog box. Laster,
Fig. 7 and ¶ 148. Appellant also argues that Laster fails to describe a
simulated representation. This argument fails for the reason discussed in the
previous section.
Claims 5, 71, 74, and 75
Appellant argues that the prior art fails to describe the claim limitation
that the simulated representation of an auctioneer is “user selectable from a
plurality of simulated representations . . . each of which having distinct
characteristics.” Br. 15. Appellant argues, citing Hauk paragraph 6, that
although Hauk allows users to select specific avatars to represent
themselves, i.e., to select an avatar having a particular aesthetic appearance,
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the selection of an avatar does not modify a personality, verbal expressions,
or similar personality characteristics of the avatar. Br. 15.
We agree with, and adopt the Examiner’s response to Appellant’s
argument at page 16 of the Answer. We agree with the Examiner that the
claims do not recite that the simulated representations of an auctioneer have
different personalities, verbal expressions, or personality characteristics.
Instead, the claims merely recite that the simulated representations of an
auctioneer have distinct (or different) characteristics.
For the reasons set forth above, we are not persuaded by Appellant’s
arguments that the Examiner erred in rejecting claims 1, 5, 24–26, 28, 30,
32, and 70–87 under 35 U.S.C. § 103(a). We, therefore, sustain the
Examiner’s rejection.

DECISION
The decision of the Examiner to reject claims 1, 5, 24–26, 28, 30, 32,
and 70–87 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

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