Ex Parte TIBBERTSDownload PDFPatent Trial and Appeal BoardNov 15, 201713013883 (P.T.A.B. Nov. 15, 2017) Copy Citation 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; 2 Appeal 2016/004090 Application 13/013,883 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. 3 Appeal 2016/004090 Application 13/013,883 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. 4 Appeal 2016/004090 Application 13/013,883 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. 5 Appeal 2016/004090 Application 13/013,883 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)). 6 Appeal 2016/004090 Application 13/013,883 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. 7 Appeal 2016/004090 Application 13/013,883 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. 8 Appeal 2016/004090 Application 13/013,883 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 9 Copy with citationCopy as parenthetical citation