Ex Parte Sherman et al

Patent Trial and Appeal Board

Feb 23, 2017

12579943 (P.T.A.B. Feb. 23, 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.
12/579,943 10/15/2009 Abe P. Sherman 3708.2.lnp 9354
92983 7590
Jason P. Webb
1682 Reunion Ave, Suite 100
South Jordan, UT 84095
EXAMINER
GO YEA, OLUSEGUN
ART UNIT PAPER NUMBER
3687
NOTIFICATION DATE DELIVERY MODE
02/27/2017 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):
dokippearson @ gmail. com
mariella@pearsonbutler.com
j asonw @ pearsonbutler.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ABE P. SHERMAN, MARK I. WOLFSON,
and ELLEN FALCINELLI
Appeal 2014-008944
Application 12/579,943
Technology Center 3600
Before MURRIEL E. CRAWFORD, HUBERT C. LORIN, and
MATTHEW S. METERS, Administrative Patent Judges.
CRAWFORD, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134 of the Examiner’
final decision rejecting claims 1—20. We have jurisdiction over the appeal
under 35 U.S.C. § 6(b).
We AFFIRM.
Appeal 2014-008944
Application 12/579,943
BACKGROUND
Appellants’ invention is directed to “to merchandising systems and
methods, specifically to an inventory analysis and merchandising system and
methods.” (Spec. 12).
Claim 1 is illustrative:
1. A method of providing inventory management and
merchandising analysis through machine processing of
point-of-sale data from a remote retailer, comprising:
a) receiving point-of-sale data from a remote retailer over a
network;
b) determining translation requirements for the point-of-sale
data and translating where appropriate;
c) populating a data storage module with received point-of-
sale data;
d) querying the data storage module;
e) generating a dynamic report template displaying queried
data;
f) revising and manipulating the dynamic report according
to a protocol;
g) determining feedback; and
h) reporting feedback to the remote retailer.
The Examiner relies on the following prior art reference as evidence
of unpatentability:
Appellants appeal the following rejection(s):
Claims 1, 2, and 13—20 under 35 U.S.C. § 103(a) as unpatentable over
Hunt and Cruse.
Claims 3—12 under 35 U.S.C. § 103(a) as unpatentable over Hunt,
Cruse
Hahn-Carlson
Hunt
US 2002/0010659 A1 Jan. 24, 2002
US 2005/0033671 A1 Feb. 10, 2005
US 2009/0018996 A1 Jan. 15, 2009
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Appeal 2014-008944
Application 12/579,943
Cruse, and Hahn-Carlson.
ISSUES
Did the Examiner err in rejecting claim 1 because Hunt teaches away
from using ad hoc reports?
Did the Examiner err in rejecting claim 1 because Cruse does not
teach revising and manipulating the dynamic report according to a protocol?
Did the Examiner err in rejecting claim 19 because the cited art does
not teach a translation module receiving data directly from the point of sale
device?
FACTUAL FINDINGS
We adopt all of the Examiner’s findings as our own. Final Act. 2—3,
7—8 and 10. Additional findings of fact may appear in the Analysis that
follows.
ANALYSIS
We are not persuaded of error on the part of the Examiner by
Appellants' argument that Hunt teaches away from generating a dynamic
report.
A reference teaches away from a modification when the reference,
taken as a whole, “criticiz[es], discredits], or otherwise discourage[s]” the
modification. In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). Whether
the prior art teaches away from the claimed invention is a question of fact.
DyStar Textilfarben GmbHv. C.H. Patrick Co., 464 F.3d 1356, 1360 (Fed.
Cir. 2006); In re Harris, 409 F.3d 1339, 1341 (Fed. Cir. 2005); cf.
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Appeal 2014-008944
Application 12/579,943
Ordnance Mfg. v. SGSImporters Int'l, 73 F.3d 1085, 1090 (Fed. Cir. 1995)
(to teach away, a reference must state that a feature “should not” or “cannot”
be used in combination with other features in the prior art).
The Appellants argue that paragraphs 7 and 8 of Hunt teach away
from generating a dynamic report (Brief 10). We agree with the Examiner’s
response to this argument found on pages 3 to 5 of the Answer and adopt
this response as our own. We emphasize that not only does Hunt not teach
away from generating ad hoc reports, Hunt actually teaches generating ad
hoc reports at paragraph 309. At this paragraph, Hunt discloses that the
embodiments, the methods and systems disclosed may facilitate generation
of ad-hoc business performance reports and analyses on demand from a
single source of data.
We are not persuaded of error on the part of the Examiner by
Appellants’ argument that Cruse does not teach revising and manipulating
the dynamic report according to a protocol. We agree with the Examiner’s
response to this argument at page 5 of the Answer. Specifically, we agree
that the teaching in paragraph 9 of Cruse that allows data to be sorted in
ascending or descending order and/or defines specific filter criteria to
generate ad hoc reports is a teaching of revising and manipulating the report
according to a protocol as broadly claimed. In regard to the Appellants’
argument that Cruse does not disclose specific protocols such as security
protocols, communication protocols, routing protocols, etc., we note that the
claims do not recite these specific protocols, but only that the revisions and
manipulation is done according to a protocol. We also note that Appellants,
at page 16 of the Brief, define protocols as a specific set of predefined
procedures. In our view, the sorting of data in ascending or descending
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Appeal 2014-008944
Application 12/579,943
order or in accordance with a filter is a manipulation and revision of data in
accordance with a protocol as broadly claimed.
In view of the foregoing, we will sustain the rejection as it is directed
to claim 1. We will also sustain the rejection as it is directed to claims 2—18
and 20 because the Appellants have not argued the separate patentability of
these claims.
We are not persuaded of error on the part of the Examiner by
Appellants’ argument in regard to claim 19 that the cited art does not teach a
translation module receiving data directly from the point of sale device. We
agree with the Examiner’s response to this argument found on page 5 of the
Answer. Specifically, we agree and find that paragraph 119 of Hunt teaches
this subject matter by teaching that the data may be point of sale data.
In view of the foregoing, we will also sustain the Examiner’s rejection
of claim 19.
DECISION
The decision of the Examiner 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) (2009).
AFFIRMED
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