Ex Parte WhiteDownload PDFPatent Trial and Appeal BoardMay 21, 201410688006 (P.T.A.B. May. 21, 2014) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte RUSSELL T. WHITE, JR. ____________________ Appeal 2012-001667 Application 10/688,006 Technology Center 3600 ____________________ Before: MURRIEL E. CRAWFORD, ANTON W. FETTING, and MICHAEL W. KIM, Administrative Patent Judges. KIM, Administrative Patent Judge. DECISION ON APPEAL Appeal 2012-001667 Application 10/688,006 2 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, Appeal 2012-001667 Application 10/688,006 3 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 . . . . Appeal 2012-001667 Application 10/688,006 4 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). Appeal 2012-001667 Application 10/688,006 5 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 Appeal 2012-001667 Application 10/688,006 6 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 Appeal 2012-001667 Application 10/688,006 7 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 llw Copy with citationCopy as parenthetical citation