Ex Parte Wasco

Patent Trial and Appeal Board

Jan 24, 2018

12502800 (P.T.A.B. Jan. 24, 2018)

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.
12/502,800 07/14/2009 Christopher William Wasco 11391 6889
27752 7590 01/26/2018
THE PROCTER & GAMBLE COMPANY
Global IP Services
Central Building, C9
One Procter and Gamble Plaza
CINCINNATI, OH 45202
EXAMINER
MISIASZEK, AMBER ALTSCHUL
ART UNIT PAPER NUMBER
3624
NOTIFICATION DATE DELIVERY MODE
01/26/2018 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):
centraldocket. im @ pg. com
pair_pg @ firsttofile. com
mayer.jk @ pg. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISTOPHER WILLIAM WASCO
Appeal 2016-007902
Application 12/502,800
Technology Center 3600
Before JOHN A. EVANS, JOYCE CRAIG, and
STEVEN M. AMUNDSON, Administrative Patent Judges.
CRAIG, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1-20, which are all of the claims pending in this
application. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 According to Appellant, the real party in interest is The Procter & Gamble
Company. Br. 1.
Appeal 2016-007902
Application 12/502,800
INVENTION
Appellant’s claimed invention relates to displaying data for a physical
retail environment on a virtual illustration of the physical retail environment.
Abstract. Claim 1 is illustrative and reads as follows:
1. A method of displaying sales related data for a physical
retail environment that sells physical goods on an electronic
illustration of the physical retail environment as a virtual retail
environment comprising:
displaying the electronic illustration of the virtual retail
environment of the physical retail environment on an electronic
display in human scale that partially surrounds a user wherein the
electronic illustration comprises a store layout of at least one from a
group comprising:
virtual store shelves, virtual aisles, virtual departments, a
virtual exit, a virtual entrance, and a virtual checkout location;
identifying products for sale in the physical retail environment
corresponding to the virtual retail environment;
assigning a unique location within the store layout to each of
the products;
identifying sales related data for the products for sale;
selecting a display item wherein the display item is at least one
from a group comprising:
the product; a product category; the virtual store shelf;
the virtual aisles and the virtual departments; customer traffic data
displaying the sales related data for the display item on the
electronic illustration of the virtual retail environment wherein the
sales related data for the display item is displayed in proximity to the
unique location of a corresponding product of the display item within
the store layout.
REJECTIONS
Claims 19 and 20 stand rejected under 35 U.S.C. § 101 because the
claims recite a computer storage medium that could reasonably comprise a
transitory propagating signal per se.
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Application 12/502,800
Claims 1-20 stand rejected under 35 U.S.C. § 101 because the
claimed subject matter is judicially-excepted from patent eligibility.
Claims 1-202 stand rejected under 35 U.S.C. § 112, second paragraph,
as indefinite.
Claims 1-5, 7, 15, 16, and 19 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Sandus et al. (US 2002/0072993 Al; published June
13, 2002) (“Sandus”).
Claim 6 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
the combination of Sandus and Sorensen (US 2006/0010030 Al; published
Jan. 12, 2006).
Claims 8-14, 17, 18, and 20 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over the combination of Sandus, Sorensen, and Klaubauf et
al. (US 2003/0200129 Al; published Oct. 23, 2003) (“Klaubauf’).
ANALYSIS
We have reviewed the rejections of claims 1-20 in light of
Appellant’s arguments that the Examiner erred. We have considered in this
decision only those arguments Appellant actually raised in the Briefs. Any
other arguments Appellant could have made but chose not to make in the
Briefs are deemed waived. See 37 C.F.R. § 41.37(c)(l)(iv).
Rejection of Claims 19 and 20 under 35 U.S.C. § 101
The Examiner rejected claims 19 and 20 as directed to non-statutory
subject matter because the claims recite a “computer storage medium” that
2 The Examiner did not provide a heading for this rejection. Final Act. 7.
The Examiner indicated in the body of the rejection that independent claims
1,15, and 19 recite an indefinite term. Id. We understand the Examiner to
have rejected the three independent claims and all claims depending from
those claims, i.e., claims 1-20.
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Application 12/502,800
could reasonably comprise a transitory propagating signal per se. Final Act.
3—4 (citing In reNuijten, 500 F.3d 1346, 1356-57 (Fed. Cir. 2007)).
Appellant contends the Examiner erred because “[t]he Examiner has
not provided an indication of how anything related to a method may be
stored in what has been characterized as a transient medium.” Br. 4.
Appellant further argues “[t]he Examiner offers no basis for reading
computer storage medium as computer readable medium.” Id.
Appellant’s arguments are not persuasive. During examination,
claims are given their broadest reasonable interpretation consistent with the
specification. In re Am. Acad. ofSci. Tech Ctr., 367 F.3d 1359, 1364 (Fed.
Cir. 2004). The broadest reasonable interpretation of claims drawn to a
“computer storage medium” usually encompasses transitory signals, unless
the specification explicitly discloses otherwise. See Ex parte Mewherter,
107 USPQ2d 1857, 1859-64 (PTAB 2013) (precedential). When the
broadest reasonable interpretation of a claim includes transitory signals, the
claim covers non-statutory subject matter and should be rejected under
35 U.S.C. § 101. See Nuijten, 500 F.3d at 1356-57; Mewherter, 107
USPQ2d at 1862. Here, Appellant has not identified a definition of
“computer storage medium” in the Specification that precludes the recited
term from encompassing transitory signals, and we find none.
For these reasons, we are not persuaded the Examiner erred in finding
claims 19 and 20 are directed to non-statutory subject matter. Accordingly,
we sustain the Examiner’s 35 U.S.C. § 101 rejection of claims 19 and 20.
Rejection of Claims 1—20 under 35 U.S.C. §101
Appellant contends the Examiner erred in rejecting claims 1-20 under
35 U.S.C. § 101 because the Examiner mischaracterized the claims as
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Application 12/502,800
directed to the abstract idea of receiving a prescription claim request. Br. 5.
Appellant argues the claims are directed to
machines, storage media, and processes associated with
providing a virtual, interactive, representation of a physical
retail environment including the presentation of products
offered for sale in the physical environment together with sales
related data about the products, not the broad abstraction of
presenting sales data and not the receipt of a prescription claim
request.
Id.
We agree the Examiner erred in the Final Action by characterizing the
claims as directed to receiving a prescription claim request. See Final Act.
5. The Examiner, however, did not err in determining the claims are
directed to an abstract idea. In the Answer, the Examiner explained the
claims are directed to presenting product data and actions that facilitate
transmitting product data and, thus, relate to comparing new and stored
information and using rules to identify options, using categories to organize,
store and transmit information, and data recognition and storage. Ans. 5-6.
The Examiner further found the recited technical environment is a generic
display environment, and “the computer functions performed of one or more
of displaying the electronic illustration of the virtual retail environment are
merely generic computer functions that are well-understood, routine and
conventional in the industry.” Id. at 7.
We have considered Appellants’ arguments, but do not find them
persuasive of error. Applying the first step of the Alice analysis, we are not
persuaded by Appellant’s arguments that claims 1-20 are not directed to
abstract ideas and agree, instead, with the Examiner’s conclusions. See
Alice Corp. Pty. Ltd. v. CLS Bank Inti, 134 S. Ct. 2347 (2014). We agree
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Application 12/502,800
with the Examiner that the claims are directed to presenting product data and
actions that facilitate transmitting product data. See Ans. 4-6. As in
Electric Power Group, the purported advance of claim 1 resides in uses for
existing computer capabilities, not in new or improved computer
capabilities, per se. See Elec. Power Grp., LLC v. Alstom S.A, 830 F.3d
1350, 1354 (Fed. Cir. 2016); see also id. at 1353-54 (explaining that an
invention directed to the collection, manipulation, and display of data is an
abstract process). Accordingly, we find that the claims are directed to a
patent-ineligible concept.
Step two of the analysis considers whether the claims contain an
inventive concept such as additional limitations that narrow, confine, or
otherwise tie down the claims so they do not fully cover the abstract idea
itself. See Alice, 134 S. Ct. at 2357. Here, we agree with the Examiner that
no inventive concept is present. In particular, the hardware features are the
type of generic element that has been determined to be insufficient by the
Supreme Court to transform a patent-ineligible claim into one that is patent-
eligible. See id. Appellant did not file a Reply Brief, and has not
persuasively rebutted the Examiner’s findings set forth in the Answer. We
agree with and adopt as our own the Examiner’s findings of facts and
conclusions as set forth in the Answer (Ans. 4-7).
Accordingly, we sustain the Examiner’s 35 U.S.C. § 101 rejection of
claims 1-20.
Rejection of Claims 1—20 under 35 U.S.C. § 112, Second Paragraph
The Examiner considered the term “human scale” in claims 1,15, and
19 indefinite. Final Act. 7. The Examiner interpreted “human scale” to
mean “making a life size representation to enhance viewing.” Ans. 8. The
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Examiner explained that, in a virtual reality environment, making an object
“human scale” would be interpreted as making the object life size or life like
for the avatar or character interacting in the virtual reality environment. Id.
The Examiner found no way to ascertain from the definition given in the
specification whether “human scale” is compared to the avatar or the human
viewer. Id.
We agree with Appellant that the Examiner erred in concluding the
disputed term is indefinite. The rejected claims do not recite an avatar and,
in light of paragraph 24 of the Specification, one with ordinary skill in the
art would have been apprised of the scope of the claimed “human scale.”
Thus, for essentially the reasons argued by Appellant (Br. 8), we reverse the
Examiner’s indefmiteness rejection of independent claims 1,15, and 19, and
claims depending therefrom.
Rejection of Claims 1—20 under 35 U.S.C. § 103(a)
In rejecting the claims for obviousness, the Examiner relied on Sandus
as teaching the final “displaying” step of claim 1. Appellant contends the
Examiner erred because the cited portions of Sandus (paragraphs 101 and
140) teach listing various sets of information from a menu-based system that
does not include any display of a retail environment at any scale, and is not
for the concurrent display of a virtual retail environment overlaid with sales
information displayed in proximity to the location of the associated products
within the virtual retail environment, as claim 1 requires. Br. 9.
Appellant has not persuaded us that the Examiner erred. In the
Answer, the Examiner found paragraphs 7 and 85 of Sandus teach allowing
item information to be viewed as popup text using rollover techniques
known in the art. Ans. 9. The Examiner explained that paragraphs 101 and
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140 of Sandus, read in conjunction with paragraphs 7 and 85, teach or
suggest the disputed limitation. Id. Appellant has not persuasively rebutted
the Examiner’s findings. Appellant did not file a Reply Brief, and did not
address paragraphs 7 and 85 of Sandus in the Appeal Brief. See Br. 9.
For these reasons, we sustain the Examiner’s 35 U.S.C. § 103(a)
rejection of representative, independent claim 1, as well as the Examiner’s
35 U.S.C. § 103(a) rejection of grouped claims 2-5, 7, 15, 16, and 19. See
App Br. 8-9. We also sustain the Examiner’s 35 U.S.C. § 103(a) rejection
of claim 6 and of claims 8-14, 17, 18 and 20, for which Appellant’s
arguments are similar to those set forth for claim 1, discussed above. See id.
at 9-12.
DECISION
We affirm the Examiner’s decision to reject claims 1-20 under
35 U.S.C. § 101.
We reverse the Examiner’s decision to reject claims 1-20 under
35 U.S.C. § 112, second paragraph.
We affirm the Examiner’s decision to reject claims 1-20 under
35 U.S.C. § 103(a).
Because we affirm at least one ground of rejection with respect to
each claim on appeal, the Examiner’s decision rejecting claims 1-20 is
affirmed. See 37 C.F.R. § 41.50(a)(1).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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