Ex Parte Tibberts

Patent Trial and Appeal Board

Nov 15, 2017

13013883 (P.T.A.B. Nov. 15, 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.
13/013,883 01/26/2011 JANET LYNN TIBBERTS NY-TIBB.P0201US/07014410 9567
32132 7590 11/17/2017
LAMORTE & ASSOCIATES P.C.
P.O. BOX 434
YARDLEY, PA 19067
ART UNIT PAPER NUMBER
3628
NOTIFICATION DATE DELIVERY MODE
11/17/2017 ELECTRONIC
EXAMINER
ALLEN, AKIBA KANELLE
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):
uspatlawl @ verizon.net
mail@uspatlaw.com
malamorte@verizon.net
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JANET LYNN TIBBERTS
Appeal 2016-004090
Application 13/013,883
Technology Center 3600
Before DEBRA K. STEPHENS, CARL W. WHITEHEAD JR., and
JOSEPH P. LENTIVECH, Administrative Patent Judges.
WHITEHEAD JR., Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant is appealing the Final Rejection of claims 17—33 under
35 U.S.C. § 134(a). Appeal Brief 2. We have jurisdiction under 35 U.S.C.
§ 6(b) (2012).
We affirmed.
Introduction
The invention is directed to a:
[Sjystem and method described herein (referred to
hereafter as the “System”) comprises a system and computer
based methods for planning, scheduling and managing the
participation of family units or sub-units in an exponential
smoothing manner with respect to rides, shows and other events
and guest activities at an amusement park, theme park or other
attraction (referred to hereafter as a “MAP” or “mega amusement
Appeal 2016/004090
Application 13/013,883
park”). The System permits users to access the System, for
example, through a computer over the Internet or through a
computer onsite at the MAP or at another location. The System
permits the user to rank in order all the rides and other attractions
that the user would like to use during a specific day, either alone
or with others. In operation, the System processes the
information and provides the user with a schedule of reservations
for attractions (based upon the requests of the user and
availability).
Specification, paragraph 2.
Illustrative Claim (disputed limitations emphasized)
17. In an amusement park having a plurality of zones and
activities located within at least some of said zones, wherein
said activities periodically service a predetermined number of
amusement park guests having tickets to said activities, a
method of issuing said tickets to minimize crowding within
said amusement park, said method comprising the steps of:
providing a computer server that runs a web
application, wherein said computer server can be accessed by
groups of potential amusement park guests through user devices
that access said computer server through a computer network;
prompting the groups of potential amusement park guests
who access said web application in said computer server to
input demographic details and potential times of attendance,
wherein said demographic details include ages of all within
the groups;
having said web application display activity openings
during said potential times of attendance within each of said
zones;
having the groups input a selection into said web
application that selects from said activity openings to create
a proposed activity schedule;
having said web application analyze said proposed
activity schedule with consideration to said demographic
details and display warnings if said proposed activity
schedule may be unachievable given said demographic details',
having said groups create a final activity schedule,
through said web application, with knowledge of said warnings;
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charging said groups for tickets required by said final
activity schedule through said web application;
sending said tickets to said groups.
Rejections on Appeal
Claims 17—33 stand rejected under 35U.S.C. § 101 because the
claimed invention is directed to non-statutory subject matter (abstract idea).
Final Rejection 2—3.
Claims 17—21, 24—30, and 33 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over LaBrie (U.S. Patent Application Publication
2002/0055872 Al; published May 9, 2002), Schaumann (U.S. Patent
Application Publication 2003/0191772 Al; published October 9, 2003) and
Brice (U.S. Patent Application Publication 2007/0073562 Al; published
March 29, 2007). Final Rejection 3—15.
Claims 22, 23, 31, and 32 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over LaBrie, Schaumann, Teicher (U.S. Patent
Application Publication 2012/0089464 Al; published April 12, 2012) and
Jarvis (U.S. Patent 6,690,673 Bl; issued February 10, 2004). Final
Rejection 16—19.
ANALYSIS
Rather than reiterate the arguments of Appellant and the Examiner,
we refer to the Appeal Brief (filed July 15, 2015), the Answer (mailed
December 17, 2015 and January 13, 2016), and the Final Rejection (mailed
February 10, 2015) for the respective details.
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35 U.S.C. $ 101 Rejection
Appellant argues the 35 U.S.C. § 101 rejection of claims 17—33 is
erroneous because, “The claimed methodology in all independent claims
clearly includes steps that are not obscure ideas and can not be performed in
the mind. As such, the method steps are associated with the processes of
software application, which are patentable by statute.” Appeal Brief 6.
Appellant contends:
In accordance with USPTO Memorandum from the Deputy
Commissioner for Patent Examination Policy, entitled “Interim
Guidance for Determining Subject Matter Eligibility for
Process Claims in View of Bilski v. Kappos[1]”, a method claim
must meet a specialized, limited meaning to qualify as a patent-
eligible process claim. As clarified in Bilski, the test for a method
claim is whether the claimed method is (1) tied to a particular
machine or apparatus, or (2) transforms a particular article to a
different state or thing. This is called the “machine-or-
transformation test.”
Appeal Brief 6.
Appellant further contends:
In both independent claims, the Applicant claims the method
steps that are clearly being performed by software being run in a
computer system. In fact, the computer system and the web
application software being run are specifically claimed as
elements of the claims. The claimed steps are not an abstract idea
and that is solely completed in a person's mind. The Applicant
knows of no person who can run web application software using
only the power of his or her mind. The claimed methodology
identifies a specific machine (i.e. the computer server) that is
running specific web application software. The machine
meaningfully limits the execution of the steps. Lastly, the
claimed method produces a useful, concrete, and tangible result.
1 July 27,2010.
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The method steps of Claim 17 and Claim 25 cannot be
achieved mentally, nor are these steps indicative of some vague
concept. To the contrary, the method steps produce a result that
is useful, concrete, and tangible. The method therefore passes the
machine-or-transformation test.
Appeal Brief 6—7.
The Examiner finds:
[According to the recent July 2015 updates on eligibility, the
present claims are still not eligible under 35 USC [§] 101. With
regard to the independent claims, these claims recite a system
and method for issuing tickets in an amusement park, which is
an abstract idea. The limitations of the claims disclose selecting
activity openings, analyzing a proposed activity schedule,
creating a final schedule, charging for and sending tickets is a
type of organizing human activity similar to those found by
the courts to be abstract. The remaining limitations are
merely data access and manipulation steps. Furthermore, the
claims do not include additional elements that are sufficient to
amount to significantly more than the judicial exception.
Therefore, Examiner maintains her 35 USC [§] 101 rejection.
Answer 3^4.2
We do not find Appellant’s arguments persuasive. In determining
patent eligibility the machine-or-transformation test is a useful clue but not
the sole test for deciding patent eligibility. See Bilski v. Kappos, 561 U.S.
593, 604 (2010) (“This Court’s precedents establish that the machine-or-
transformation test is a useful and important clue, an investigative tool, for
determining whether some claimed inventions are processes under § 101.
The machine-or-transformation test is not the sole test for deciding whether
an invention is a patent-eligible ‘process.’”). Further, Appellant’s arguments
fail to show that the Examiner’s rejection is erroneous because Appellant’s
2 Mailed January 13, 2016.
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arguments are based upon the July 27, 2010 USPTO Memorandum and not
the USPTO “July 2015 Update: Subject Matter Eligibility” upon which the
Examiner’s analysis to determine if the claims of the instant application are
directed to non-statutory subject matter is based. See Appeal Brief 6;
Answer 3^43 and 4—5.4 We sustain the Examiner’s 35 U.S.C. § 101
rejection of claims 17—33.
35 U.S.C. $ 103 Rejection
Appellant argues the Examiner’s obviousness rejection of independent
claims 17 and 25 is erroneous because LaBrie fails to disclose a manifold of
recited limitations. Appeal Brief 9—12. However, it is noted that the
obviousness rejection is based upon a combination of references and not just
LaBrie alone. Final Rejection 3—15. The Examiner has already conceded
that LaBrie failed to disclose some of the claimed limitations and reiterating
the Examiner’s concession in regard to LaBrie’s deficiencies fails to
persuade us of Examiner’s error.5 Appellant argues Schaumann fails to
address LaBrie’s deficiency because:
The Schaumann reference makes no disclosure concerning
altering the scheduling of meetings or the scheduling of any other
activity in view of demographic data. The Schumann reference
does not disclose the step of analyzing a proposed activity
schedule, taking into account the demographics of age, or
anything else, prior to the creation of a final activity schedule.
3 Mailed January 13, 2016.
4 Mailed December 17, 2015.
5 “Non-obviousness cannot be established by attacking references
individually where the rejection is based upon the teachings of a
combination of references.” In re Merck, 800 F.2d 1091, 1097 (Fed. Cir.
1986) (citing In re Keller, 642 F.2d 413, 425 (Fed. Cir. 1981)).
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Lastly, the Schaumann reference does not analyze schedules and
present warnings that selected schedules may not be achievable.
Appeal Brief 12.
Schaumann’s invention is directed to electronic scheduling of
meetings and discloses the use of a database to customize managing the
meetings. Schaumann’s paragraphs 2, 5. We do not find Appellant’s
arguments persuasive because the Examiner finds Schaumann utilizes
demographics to manage meetings. Final Rejection 6—7 (citing Schaumann,
paragraph 73 “an input for the age of the selected meeting attendee or
customer, e.g., guest of honor, 372, an input for the number of meeting
attendees or customers, e.g., guests, 374” (emphasis added)).
Appellant further argues the Examiner’s finding that Teicher
(paragraph 37) discloses “the claimed method step of ‘having said groups
create a final activity schedule, through said web application, with
knowledge of said warnings’” is erroneous. Appeal Brief 14. The Examiner
also cited paragraph 131 of Teicher. See Final Rejection 9-10. We do not
find Appellant’s argument persuasive, because Appellant failed to address
the Examiner’s finding in regard to Teicher’s paragraph 131.
Appellant additionally argues:
The Brice reference does not disclose the step of analyzing
a proposed activity schedule, in view of group demographics,
prior to the creation of a final activity schedule. Furthermore, the
Brice reference makes no disclosure concerning the
methodology of analyzing schedules and presenting warnings
that selected schedules may not be achievable. Consequently, the
Brice reference does not address the deficiencies of the
LaBrie/Schaumann/T eicher combination.
Appeal Brief 15.
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We do not find Appellant’s argument persuasive, because Appellant
failed to address the Examiner’s finding that Brice discloses in paragraph 59
the claimed method step of “prompting for input.” See Final Rejection 10—
11. Accordingly, we sustain the Examiner’s obviousness rejection of
independent claims 17 and 25, as well as dependent claims 18—21, 24, 26—
30, and 33 not separately argued, because Appellant did not convince us that
the obviousness rejection was erroneous for the reasons stated above.
Dependent claims 22, 23, 31, and 32
Appellant contends in regard to dependent claims 22, 23, 31, and 32:
In direct opposition to the Examiner’s previous position in
regard to Claim 17 and Claim 25, the Examiner now specifically
states that the LaBrie/Schaumann/Teicher/Brice combination
fails to disclose the claimed method step of displaying ‘warnings
of selected activities restricted to at least one member of said
group due to said age, said height, said weight, or said physical
maladies’. See Final Office action, page 16, top of second
paragraph.
Appeal Brief 17.
We do not find Appellant’s arguments persuasive because Examiner’s
findings are not in direct opposition to her findings for independent claims
17 and 25 — neither one of the independent claims recited the specific
warnings required in dependent claims 22, 23, 31, and 32.
Appellant further argues “the Jarvis patent does not disclose the step
of analyzing a proposed activity schedule prior to the creation of a final
activity schedule.” Appeal Brief 18. We do not find Appellant’s argument
persuasive because claims 22, 23, 31, and 32 do not require or recite the
alleged analyzing step. Accordingly, we sustain the Examiner’s obviousness
rejection of claims 22, 23, 31, and 32.
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DECISION
The Examiner’s non-statutory rejection of claims 17—33 is affirmed.
The Examiner’s obviousness rejections of claims 17—33 are 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)(1). See 37 C.F.R.
§ 1.136(a)(l)(v).
AFFIRMED
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