Ex Parte White

Patent Trial and Appeal Board

May 21, 2014

10688006 (P.T.A.B. May. 21, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte RUSSELL T. WHITE, JR.
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Appeal 2012-001667
Application 10/688,006
Technology Center 3600
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Before: MURRIEL E. CRAWFORD, ANTON W. FETTING, and
MICHAEL W. KIM, Administrative Patent Judges.

KIM, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134 from the
Examiner’s final rejection of claims 1, 2, 5-8, and 10-22. We have
jurisdiction under 35 U.S.C. § 6(b).
SUMMARY OF THE DECISION
We AFFIRM-IN-PART.
BACKGROUND
Appellant’s invention is directed to managing items available for
electronic purchase (Spec., para. [0001]).
Claim 1 is illustrative:
1. A method, executed on at least one computer device, of
managing items available for electronic purchase, the method
comprising:
storing, on the at least one computer device, the items in
a hierarchical structure, wherein each of the items is located
using a database search query for each level of the hierarchical
structure and a page is dynamically generated, for a user at a
user device, based on a result of the query, wherein the query
returns a set of records containing the items based on a level of
the hierarchical structure selected and queried;
storing, on the at least one computer device, historical
data corresponding to operations performed by each of a
plurality of users in order to locate an item in the hierarchical
structure, wherein the operations include each level and
corresponding category of the hierarchical structure which were
navigated by the plurality of users in order to locate the item;
identifying, by the at least one computer device, at least
one high frequency item corresponding to a high level page by
analyzing the historical data to identify at least one item that is
most frequently located from a high level of the hierarchical
structure corresponding to the high level page,
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receiving a request for a high level page on the at least
one computer device, the high level page corresponding to a
high level of the hierarchical structure; and
automatically generating, on the at least one computer
device, the high level page using the query for the
corresponding high level of the hierarchical structure and the
identified at least one high frequency item to display the at least
one high frequency item on the high level page, wherein the
high level page is dynamically generated by the at least one
computer device in response to receiving the request for the
high level page.
Appellant appeals the following rejections:
Claims 8 and 10-13 are rejected under 35 U.S.C. § 112, second
paragraph, as indefinite for failing to particularly point out and distinctly
claim the subject matter which Applicant regards as the invention.
Claims 1, 2, 5-8, and 10-22 are rejected under 35 U.S.C. § 102(b) as
anticipated by Spiegel (US 6,466,918 B1, iss. Oct. 15, 2002).
ANALYSIS
Rejection under 35 U.S.C. § 112, second paragraph
The Examiner rejects independent claim 8 as indefinite, on the basis
of the wording of the following clause:
receiving a selection, on the at least one computer device,
of at least one item by the administrator for display on the high
level page for each user in the group of users, wherein the
selection determines which high frequency item of the
identified plurality of high frequency items is displayed, if the
high frequency item is displayed on a highest level page or the
high level page and on which high level page the high
frequency item is displayed, and wherein the selection can
comprise an item that is not a high frequency item to be
displayed on the highest level page or the high level page . . . .
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Specifically, the Examiner states that in the clause “almost nothing is clear
or definite,” such as “where and by what entity the selection is made.”
Ans. 5.
We are persuaded by Appellant’s argument that “the claim clearly
states that the selection of at least one item is by an administrator and that it
is received on a computer device.” App. Br. 8; see also Reply Br. 2-3. We
agree that the plain meaning of the claim language is that the step involves
“receiving a selection . . . of at least one item by the administrator . . . .”
For this reason, we do not sustain the rejection of claim 8 under 35
U.S.C. § 112, second paragraph, as well as claims 10-13 that depend from
claim 8.
Rejection under 35 U.S.C. § 102 (b) of Claims 1 and 5-7
We are not persuaded by Appellant’s argument that the rejection of
claim 1 is in error because Spiegel fails to disclose that “the operations
stored include each level and corresponding category of the hierarchical
structure navigated by a plurality of users as in claim 1.” (App. Br. 10). The
argument, and related arguments on page 10 of the Appeal Brief, fail
because they are not commensurate in scope with the claim, which does not
require storing the specific information argued. Instead, claim 1 more
broadly recites “storing . . . historical data corresponding to operations
performed . . .” where the operations involve users navigating the
hierarchical structure displaying items for sale. Spiegel discloses displaying
items for sale in a hierarchical format (column 4, line 64 to column 5, line
10), and “collect[ing] information about the browsing and/or purchasing
activities of users . . . to automatically evaluate the popularity levels of
specific item nodes and category nodes of the tree” (column 6, lines 5-10).
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The historical information Spiegel collects corresponds to the operations of
users to navigate the hierarchical structure displaying the items, as claimed.
For this reason, we sustain the rejection of claim 1 under 35 U.S.C.
§ 102 (b), as well as dependent claims 5-7 that were not separately argued.
Rejection under 35 U.S.C. § 102(b) of Claims 14-18
Appellant argues independent claim 14 by reference to the arguments
directed at claim 1 (App. Br. 14), so we sustain the rejection of claim 14, and
claims 15-18 that were not separately argued, for the same reasons as for
claim 1.
Rejection under 35 U.S.C. § 102(b) of Claims 19-22
Appellant argues independent claim 19 by reference to the arguments
directed at claim 1 (App. Br. 15-16), so we sustain the rejection of claim 19,
and claims 20-22 that were not separately argued, for the same reasons as for
claim 1.
Rejection under 35 U.S.C. § 102(b) of Claim 2
Dependent claim 2 recites “presenting the at least one high frequency
item to an administrator . . . .”
We are persuaded by Appellant’s argument that Spiegel does not
disclose presenting an item to the Administrator for selection for elevation in
the hierarchy, because items in Spiegel are instead “automatically elevated.”
App. Br. 11-12; see also Reply Br. 4.
The Examiner cites the claim limitation and argues it is disclosed in a
thirteen locations in Spiegel (Ans. 8-9), and that Spiegel “includes the
capacity for node elevation either automatically or by the system
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administrator” because “three of the cited portions specifically discuss the
administrator.” Ans. 14-15. We disagree.
Spiegel discloses that the “organization of the browse tree may be
specified by system administrators” (column 4, lines 64-67) and “categories
may alternatively be selected or modified dynamically (automatically and/or
by system administrators)” (column 5, lines 4-6). Spiegel also discloses
weights assigned to recorded activity, used by the system to elevate items
automatically in the hierarchy, may be “adjusted by system administrators”
(column 15, lines 12-15). We do not find, however, a disclosure in Spiegel
of presenting an individual item, rather than a category of items, to an
administrator for selection. A claim is anticipated only if each and every
element as set forth in the claim is found, either expressly or inherently
described, in a single prior art reference. Verdegaal Bros. v. Union Oil Co.
of California, 814 F.2d 628, 631 (Fed. Cir. 1987).
Therefore, we will not sustain the rejection of claim 2 under 35 U.S.C.
§ 102(b).
Rejection under 35 U.S.C. § 102(b) of Claims 8 and 10-13
Independent claim 8 recites in a method claim “presenting, on the at
least one computer device, the plurality of high frequency items to an
administrator for a group of users; receiving a selection, on the at least one
computer device, of at least one item by the administrator . . . .”
We are persuaded by Appellant’s argument that “Spiegel fails to teach
presenting an administrator with the list of items, much less allowing a
selection of an item that is not high frequency.” (Reply Br. 4-5). As we set
forth above at claim 2, Spiegel does not disclose presenting an individual
item, or a plurality of items, to an administrator for selection. For this
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reason, we will not sustain the rejection of claim 8, nor of claims 10-13 that
depend from claim 8.
DECISION
We REVERSE the rejection under 35 U.S.C. § 112, second
paragraph, of claims 8 and 10-13.
We AFFIRM the rejection under 35 U.S.C. § 102(b) of claims 1, 5-7,
and 14-22.
We REVERSE the rejection under 35 U.S.C. § 102(b) of claims 2, 8,
and 10-13.
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)(iv).

AFFIRMED-IN-PART

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