Ex Parte NassiriDownload PDFPatent Trial and Appeal BoardJun 24, 201410132970 (P.T.A.B. Jun. 24, 2014) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte NICHOLAS NASSIRI ____________ Appeal 2012-002272 Application 10/132,970 Technology Center 3600 ____________ 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. Appeal 2012-002272 Application 10/132,970 2 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; Appeal 2012-002272 Application 10/132,970 3 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. Appeal 2012-002272 Application 10/132,970 4 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 Appeal 2012-002272 Application 10/132,970 5 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 Appeal 2012-002272 Application 10/132,970 6 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. Appeal 2012-002272 Application 10/132,970 7 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, Appeal 2012-002272 Application 10/132,970 8 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 mls Copy with citationCopy as parenthetical citation