Ex Parte Peters et al

Patent Trial and Appeal Board

Aug 27, 2018

13683987 (P.T.A.B. Aug. 27, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/683,987 11/21/2012
29052 7590 08/29/2018
Eversheds Sutherland (US) LLP
999 PEACHTREE STREET, N.E.
Suite 2300
ATLANTA, GA 30309
FIRST NAMED INVENTOR
Dan Peters
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.
25040-4482 8950
EXAMINER
COLLINS, MICHAEL
ART UNIT PAPER NUMBER
3651
NOTIFICATION DATE DELIVERY MODE
08/29/2018 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):
patentdocket@eversheds-sutherland.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAN PETERS, SON V. TRAN,
DAVID R. NEWMAN, LEONARD F. ANTAO,
DAVID 0. SLAGLEY, and H. BROCK KOLLS
Appeal2017-007257
Application 13/683,987
Technology Center 3600
Before JENNIFER D. BAHR, JOHN C. KERINS, and
ARTHUR M. PESLAK, Administrative Patent Judges.
PESLAK, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 27, 28, 31-35, 38--42, 45, and 46. We have
jurisdiction under 35 U.S.C. § 6(b ).
We REVERSE.
1 The Coca-Cola Company is the applicant and identified as the real party in
interest. Appeal Br. 2.
Appeal2017-007257
Application 13/683,987
THE CLAIMED SUBJECT MATTER
Claim 27, reproduced below with italics added, is illustrative of the
claimed subject matter.
27. A method for a consumer reward program, comprising:
rece1vmg, at a beverage dispenser, identification
information associated with a consumer;
identifying, by a controller associated with the beverage
dispenser, the consumer based on the identification information;
tracking, by the controller associated with the beverage
dispenser, a beverage dispensedfrom the beverage dispenser to
the consumer;
assigning, by the controller associated with the beverage
dispenser, a reward to the consumer based at least in part on a
type or volume of beverage dispensed to the consumer; and
posting, by the controller associated with the beverage
dispenser, the reward to a remote data processing resource
configured to store reward data in an account previously
designated by the consumer to receive the reward.
REJECTION
Claims 27-38, 31-35, 38--42, and 45--46 are rejected under 35 U.S.C.
§ 102(b) as anticipated by Ward (US 2005/0205666Al, published Sept. 22,
2005).
DISCUSSION
The Examiner finds that Ward discloses all the limitations of claim
27. Final Act. 4--5. In connection with the limitation "assigning ... a
reward to the consumer based at least in part on a type or volume of
beverage dispensed to the consumer," the Examiner explains that Ward
discloses awarding loyalty points to a vending machine customer "based
2
Appeal2017-007257
Application 13/683,987
upon the amount of the purchases" and "the amount or number of the
purchases." Id. at 3 (citing Ward, ,r,r 36, 38). 2 According to the Examiner,
because Ward's vending machines may be used to dispense "beverage
products that may include soda cans and because soda cans must
show/include their units of volume ... the prior art discloses assigning one
or more rewards to the consumer 'based at least in part on a volume of
beverage dispensed."' Id.
Appellants contend that Ward does not anticipate claim 2 7 because
Ward does not teach or suggest the limitation in independent claim 27 of
"assigning ... a reward to the consumer based at least in part on a type
or volume of beverage dispensed to the consumer." Appeal Br. 6.
Appellants argue that the Examiner's "rationale is flawed because there is no
correlation between a price of a product or a number of purchases and a
volume of beverage dispensed." Id. Appellants note that beverage
containers are available in many different sizes. Id. Appellants argue that
"although beverages are fixed volume items of known quantity, the purchase
of those products does not necessarily correlate to a volume of those
products ... and simply tracking the number of products vended does not
correlate to tracking a volume dispensed." Id. at 6-7. For the following
reasons, we do not sustain the rejection of claim 27.
Ward discloses "a loyalty program by using one or more vending
machines to track purchases made by a registered user." Ward, ,r 5. Ward
2 Independent claims 34 and 41 contain a substantially similar limitation.
Appeal Br. 11-12 (Claims App.). The Examiner rejects claims 34 and 41
based on substantially similar findings as for claim 27. Final Act. 6, 8.
3
Appeal2017-007257
Application 13/683,987
discloses awarding loyalty points based "upon the amount of the purchases"
or "upon the amount or number of purchases." Id. ,r 36, 38.
We appreciate the Examiner's reference to the fact that the volume of
a beverage container is normally displayed on the container. Final Act. 3.
However, as noted by Appellants, beverage containers are available in
different sizes. Appeal Br. 6. The Examiner does not direct us to any
disclosure in Ward where a controller assigns a reward to a customer based
on the volume of a beverage or other item dispensed to the customer nor
does the Examiner direct us to any disclosure in Ward of tracking the
volume of a particular beverage purchase. Ward's disclosure of awarding
loyalty points based on the amount or number of purchases by a customer is
not sufficient to establish the claim limitation "assigning ... a reward to a
customer based at least in part on a type or volume of beverage dispensed to
the consumer" absent a disclosure that Ward awards loyalty points based at
least on part on information other than just the amount or number of
purchases. Therefore, we do not sustain the rejection of independent claim
27 as anticipated by Ward. We also do not sustain the rejections of
independent claims 34 and 41 for the same reasons as claim 27.
Claims 28 and 31-33 depend directly or indirectly from claim 27,
claims 35 and 38--40 depend directly or indirectly from claim 34, and claims
42, 45, and 46 depend from claim 41. Appeal Br. 10-15 (Claims App.). We
do not sustain the rejection of these claims for the same reasons discussed
above.
4
Appeal2017-007257
Application 13/683,987
DECISION
The Examiner's decision rejecting claims 27, 28, 31-35, 38--42, 45,
and 46 is reversed.
REVERSED
5