Fisher, Michelle

Patent Trials and Appeals Board

May 4, 2020

2019001705 (P.T.A.B. May. 4, 2020)

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.
14/253,607 04/15/2014 Michelle Fisher BLZMP004C51 1402
12120 7590 05/04/2020
Michelle Fisher
2930 Domingo Ave
Suite 123
Berkeley, CA 94705
EXAMINER
GOYEA, OLUSEGUN
ART UNIT PAPER NUMBER
3687
NOTIFICATION DATE DELIVERY MODE
05/04/2020 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):
mfisher@blazemobile.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MICHELLE FISHER
___________

Appeal 2019-001705
Application 14/253,607
Technology Center 3600
____________

Before CARL W. WHITEHEAD JR., JOHN F. HORVATH and
SCOTT RAEVSKY, Administrative Patent Judges.

WHITEHEAD JR., Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 is appealing the final rejection of claims 1, 6, 11, 16, 20–
33, 35, 36, 40, 41, 44, 45, 49, 50, and 52–632 under 35 U.S.C. § 134(a).
Final Action 2. Claims 2–5, 7–10, 12–15, 17–19, 34, 37–39, 42, 43, 46–48,
and 51 are cancelled. Final Action 3. We have jurisdiction under 35 U.S.C.
§ 6(b).

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies Michelle Fisher as the real party in interest.
Appeal Brief 2.
2 Claims Appendix lists 63 claims. See Claims Appendix 8. The Examiner
and Appellant acknowledge only 62 claims. See Appeal Brief 8; Answer 4.
Claim 63 is dependent upon independent claim 11. We address claim 63
with claim 11.
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We affirm.
Introduction
According to Appellant, the invention is directed to “a method and
system for conducting an online payment transaction through a point of sale
device.” Specification ¶ 4.
Representative Claim
1. A method for processing a transaction, comprising:
sending a list of products from a remote management server to
a non-browser based application generated screen for display on a
mobile device using the non-browser based application generated
screen, wherein the non-browser based application generated screen is
generated by a non-browser based application which is a mobile
operating system based application with a graphical user interface that
is preinstalled or downloaded and installed on the mobile device,
wherein the non-browser based application only generates a non-
browser based application generated screen, the non-browser based
application generated screen corresponding to a specific screen or area
of the non-browser based application, the mobile device including a
mobile device display, a mobile device processor, a mobile device
wireless radio transceiver that supports voice and data interactions
through a first wireless communication channel device using at least
one of GSM and CDMA, and a mobile device wireless fidelity (Wi-
Fi) transceiver;
receiving, at the remote management server, an identification of
one or more products selected from the list of products from the non-
browser based application generated screen, wherein the non-browser
based application generated screen receives the identification of one
or more products selected from the list of products through user input
via the mobile device display of the mobile device;
receiving, at the remote management server, a transaction
purchase request from the non-browser based application generated
screen, wherein the non-browser based application generated screen
receives the transaction purchase request through the user input via
the mobile device display of the mobile device;
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receiving, at the remote management server, user input login
information including an identification code associated with the user
from the non-browser based application generated screen, wherein the
non-browser based application generated screen receives the user
input login information via a mobile device display of the mobile
device;
upon receipt of the user input login information, authenticating,
at the remote management server, a user associated with the user input
login information;
receiving, at the remote management server, a transaction
verification from a transaction server which processes the transaction
using a payment method that corresponds to the identification code
associated with the user, wherein the transaction verification indicates
that the transaction has processed; and
downloads, the one or more products from the remote
management server, to the mobile device.

References
Name3 Reference Date
Gobburu US 2002/0060246 A1 May 23, 2002
Clisham US 2004/0168052 A1 August 26, 2004
Gautier US 2005/0021478 A1 January 27, 2005
Hayashi US 2006/0095339 A1 May 4, 2006
Ruano US 2006/0224470 A1 October 5, 2006
Rackley III US 2008/0010191 A1 January 10, 2008
Bemmel US 2008/0046366 A1 February 21, 2008

Rejections on Appeal
Claims 41, 50, 54 and 60 stand rejected under 35 U.S.C. § 112(a) or
35 U.S.C. § 112 (pre-AIA), first paragraph, as failing to comply with the
written description requirement. Final Action 3–7.

3 All reference citations are to the first named inventor only.

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Claims 1, 6, 11, 16, 20–33, 35, 36, 40, 41, 44, 45, 49, 50 and 52–63
stand rejected under 35 U.S.C. § 112(b) or 35 U.S.C. § 112 (pre-AIA),
second paragraph, as being indefinite for failing to particularly point out and
distinctly claim the subject matter which the inventor or a joint inventor, or
for pre-AIA the applicant regards as the invention. Final Action 7.
Claims 1, 6, 11, 16, 20–22, 25–28, 30, 31, 35, 36, 40, 41, 44, 45, 49,
50, 52, 55–58, 61 and 63 stand rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over Rackley and Clisham. Final Action 8–16; Answer
3–12.
Claim 23 stands rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Rackley, Clisham, and Hayashi. Final Action 16–17;
Answer 12.
Claims 24 and 29 stand rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over Rackley, Clisham, and Bemmel. Final Action 17–
18; Answer 12–13.
Claims 32 and 33 stand rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over Rackley, Clisham, and Ruano. Final Action 18–19;
Answer 13–14.
Claims 53 and 59 stand rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over Rackley, Clisham, and Gobburu. Final Action 19–
20; Answer 14–15.
Claims 54 and 60 stand rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over Rackley, Clisham, and Gautier. Final Action 20–
21; Answer 15–16.
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ANALYSIS
Rather than reiterate Appellant’s arguments and the Examiner’s
determinations, we refer to the Appeal Briefs (filed May 17, 2018 and
October 11, 20184), the Reply Brief (filed December 21, 2018), the Final
Action (mailed December 11, 2017) and the Answer (mailed November 7,
2018), for the respective details.

35 U.S.C. § 112(a), (b) rejections
The Examiner states, “Every ground of rejection set forth in the Office
action dated 12/11/2017 from which the appeal is taken is being maintained
by the examiner except for the grounds of rejection (if any) listed under the
subheading ‘WITHDRAWN REJECTIONS.’” Answer 3. The Examiner
did not indicate in the Answer that the 35 U.S.C. §§ 112(a)–(b) rejections
recited in the Final Action mailed December 11, 2017 were withdrawn. See
Answer 3; Final Action 3–7. Appellant proffered no arguments addressing
the 35 U.S.C. §§ 112(a)–(b) rejections in the Appeal Brief. See Appeal Brief
8. We summarily affirm the Examiner’s 35 U.S.C. §§ 112(a)–(b) rejections
of claims 1, 6, 11, 16, 20–33, 35, 36, 40, 41, 44, 45, 49, 50, and 52–63. See
Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (“If an
appellant fails to present arguments on a particular issue — or, more
broadly, on a particular rejection — the Board will not, as a general matter,
unilaterally review those uncontested aspects of the rejection.”); Hyatt v.

4 Appeal Brief filed October 11, 2018 only contains a copy of the Claims
Appendix. Accordingly, we refer to the Appeal Brief filed May 17, 2018 for
Appellant’s arguments. We refer to the Appeal Brief filed October 11, 2018
for the claims.
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Dudas, 551 F.3d 1307, 1313–14 (Fed. Cir. 2008) (the Board may treat
arguments appellant failed to make for a given ground of rejection as
waived).
35 U.S.C. § 103(a) rejections
Appellant contends the “combination of Rackley and [Clisham] would
teach away from Rackley and require an impermissible redesign of
Rackley.” Appeal Brief 9. We do not find Appellant’s arguments
persuasive because Appellant does not indicate where either Rackley or
Clisham encourages Rackley “Not to authenticate the user,” “Not [to]
authenticate the mobile device using the telephone number or encrypted
messages,” “Not [to] process the transaction before receiving the transaction
purchase request,” or “Not to send a payment confirmation to the MFTS
[mobile financial transaction system]” as Appellant contends. Appeal Brief
9. “A reference may be said to teach away when a person of ordinary skill,
upon reading the reference, would be discouraged from following the path
set out in the reference, or would be led in a direction divergent from the
path that was taken by the applicant.” In re Kahn, 441 F.3d 977, 990 (Fed.
Cir. 2006) (citations and internal quotation marks omitted). See also In re
Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004) (noting that merely disclosing
more than one alternative does not teach away from any of these alternatives
if the disclosure does not criticize, discredit, or otherwise discourage the
alternatives).
Appellant argues that Rackley discloses that “[a]fter the local user
authentication, the mobile wallet sends signed encrypted messages to the
MFTS (Examiner alleges is ‘remote management server’) to authenticate the
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device per paragraph 260.” Appeal Brief 13. Appellant contends that the
claimed invention “teaches the opposite in that the user is authenticated at
the server which recite in part, ‘upon receipt of the user input login
information, authenticating at the remote management server a user of the
mobile device associated with the user input login information prior to
conducting the mobile banking transaction.” Appeal Brief 13.
Appellant argues, “Rackley’s invention is different from an
engineering, security, and reliability perspective. Because the PIN is stored
on the mobile device, it is not as secure or reliable.” Appeal Brief 14. We
do not find Appellant’s arguments persuasive because Rackley discloses:
[A] unique digital key is issued to each client (mobile device) for
use in digitally signing all communications to the MFTS server.
This strongly authenticates the mobile client to the server and
dissuades attempts to impersonate or spoof the mobile client. It
will be appreciated that such a methodology affords stronger
security than online banking sites that require only a username
and password for access, which are much easier to compromise
than digital keys.

Rackley ¶ 260 (emphasis added); see Answer 18.
Accordingly, Rackley discloses where and how the user is
authenticated at the server. Moreover, we agree with the Examiner that
“Rackley teaches or at least suggest[s] both user and user device (mobile
device) authentication” and that “authentication can be placed at any
location,” including at the server. Answer 18. Further, claim 1 does not
preclude the pin from being stored on the mobile device. Rackley also
requires authorization before conducting a mobile banking transaction, “[i]n
response to entry of a valid login or PIN, screen 1306 is displayed on the
mobile device. This screen 1306 preferably comprises a menu of available
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options of the Mobile Wallet application according to an exemplary aspect
of the invention.” Rackley ¶ 328; see Answer 18–19; see also Rackley ¶
327.
Appellant argues:
[I]n another embodiment, while Rackley teaches that the a user
is authenticated by the MFTS (Examiner alleges is “remote
management server”), Rackley positively recites that in order to
provide “a quick response” the MFTS (Examiner alleges is
“remote management server”) retrieves the balance of bills and
payment sources (Examiner alleges is “processing the
transaction”) BEFORE the user selects the “Next” button
(Examiner alleges is “transaction purchase request”) in
paragraph 342 . . . .

In contrast, Applicant teaches that the transaction is
processed AFTER the user sends a transaction purchase request
as reflected in amended independent claims recite in part[:]

receiving, at the remote management server, a
transaction purchase request from the non-browser based
application generated screen [. . .] receiving, at the remote
management server, a transaction verification from a transaction
server which processes the transaction using a payment method
that corresponds to the identification code associated with the
user.

Appeal Brief 14–15.
We do not find Appellant’s argument persuasive because Rackley
discloses “after the user enters a valid password or PIN, the login is
validated by the MFTS system 18” and [a]t this point, the MFTS can start to
gather information for the user prior to the selection of any Mobile Wallet
options.” Rackley ¶ 342 (Emphasis added). The information can be
gathered by the MFTS prior to the selection of a Mobile Wallet option by
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the user but the transaction is not processed until after the user selects a
Mobile Wallet option. See Rackley ¶ 342.
Appellant further argues:
However, since [Clisham] positively recites that the
transactions is processed AFTER the client sends a buy request
(Examiner alleges is “transaction purchase request”) in
paragraph 103 and Figure 13 relied upon by the Examiner, the
combination of Rackley and [Clisham] would require an
impermissible redesign of Rackley to not process the
transaction until after receiving the buy request.

Appeal Brief 16.
We do not find Appellant’s argument persuasive because there is no
evidence in either Rackley and/or Clisham that such a modification to
Rackley would be impermissible or discouraged. See In re Kahn, 441 F.3d
at 990 (“A reference may be said to teach away when a person of ordinary
skill, upon reading the reference, would be discouraged from following the
path set out in the reference, or would be led in a direction divergent from
the path that was taken by the applicant.”).
Appellant states, “[the] [i]ndependent claims recite in part, ‘receiving,
at the remote management server, a transaction verification from a
transaction server which processes the transaction using a payment method
that corresponds to the identification code associated with the user,
wherein the transaction verification indicates that the transaction has
processed.’” Appeal Brief 18–19. The Examiner finds Rackley teaches the
disputed transaction verification limitation of the independent claims. See
Final Action 10 (citing Rackley ¶¶ 124, 244, 246, 362, 366–368). Appellant
argues that because Clisham discloses “[t]he server 504, in response to the
buy request 530, will transmit a success message 535 including a session ID
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or a failure message 535 if there is an error,” “the combination of Rackley
and [Clisham] would require an impermissible redesign of Rackley to not
send the payment confirmation message (Examiner alleges is ‘transaction
verification’) from the financial institution (Examiner alleges is
‘transaction server’) to the MFTS (Examiner alleges is ‘remote
management server’.” Appeal Brief 20 (citing Clisham ¶ 103). Again, we
do not find Appellant’s argument persuasive because there is no evidence in
either Rackley and/or Clisham that such a modification to Rackley would be
impermissible or discouraged. See Kahn, 441 F.3d at 990.
Appellant further argues the Rackley/Clisham combination fails to
disclose “[r]eceiving shopping list before user authentication Claim
element.” Appeal Brief 22 (emphasis omitted); see Claim 1 (“sending a list
of products from a remote management server to a non-browser based
application generated screen for display on a mobile device using the non-
browser based application generated screen”). The Examiner finds Clisham
discloses, “sending a list of products from a remote management server to a
non-browser based application generated screen for display on a mobile
device using the non-browser based application generated screen; [See
paragraphs 0043, 0046, 0093, 0094, 0100-0102].” Final Action 11; see
Appeal Brief 23. Appellant contends the “sending a list of products” claim
limitation in conjunction with the following limitations “teach[] that the user
is authenticated[,] not the mobile device”:
receiving, at the remote management server, user input
login information including an identification code associated
with the user from the non-browser based application generated
screen, wherein the non-browser based application generated
screen receives the user input login information via a mobile
device display of the mobile device;
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upon receipt of the user input login information,
authenticating, at the remote management server, a user
associated with the user input login information.

Appeal Brief 24.
Appellant conjectures:
Clisham’s design is different from a security, scalability,
performance and cost perspective. For example, [i]f the device
(allegedly ‘mobile device’) is lost/stolen, anyone can order
products, since there is no user authentication and the device
authentication simply consists of transmitting an IP and MAC
address in the clear, unencrypted to the server. Thus, making it
less secure.

Appeal Brief 24–25. However, Appellant admits:
Rackley teaches that the mobile device is authenticated by either
encrypting the MPI (Examiner alleges is “transaction purchase
request”) with the mobile telephone number or with a digital key
that is used to sign all communication between the mobile device
and the server. In the latter case Rackley positively recites that
this “strongly authenticates the mobile client to the server and
dissuades attempts to impersonate or spoof the mobile client
. . .[”] and that “such a methodology affords stronger security
than online banking sites that require only a username and
password for access, which are much easier to compromise
than digital keys” in paragraph 260 . . . relied upon by the
Examiner.

Appeal Brief 25; see Advisory Action mailed March 12, 2018. The
Examiner finds Rackley discloses:
Once the device is ready for use, a user can access the
features/functionalities of the mobile wallet application upon
user authentication using a PIN or password. Paragraphs 0326,
0327 and 0342. The digital certificate/key stored on the mobile
device is used as additional security measure to
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authenticate/verify the mobile device used to send messages
(including user PIN) to the MFTS. Paragraphs 0260 and 0266.

Final Action 21.
Appellant contends,
[i]n contrast, Clisham teaches simply sending in the clear
without any encryption the MAC address and IP address to
the server to authenticate the client device which make’s
Clisham’s invention prone to MAC and IP spoofing described
above, particularly since multiple client devices can use the
system as [Clisham] teaches in paragraph 113.
Appeal Brief 24. Appellant concludes, “Rackley and [Clisham]’s
authentication are NOT only not analogous, but the combination of
Rackley and [Clisham] would require an impermissible redesign of
Rackley to not authenticate the user nor to encrypt all communication
between the mobile device and server or encrypt the MPI which includes
the mobile telephone number.” Appeal Brief 28.
We do not find Appellant’s arguments persuasive because there is no
evidence in either Rackley and/or Clisham that such a modification to
Rackley would be impermissible or discouraged. See Kahn, 441 F.3d at
990; see also In re Fulton, 391 F.3d at 1201 (noting that merely disclosing
more than one alternative does not teach away from any of these alternatives
if the disclosure does not criticize, discredit, or otherwise discourage the
alternatives). Also, we note:
The test for obviousness is not whether the features of a
secondary reference may be bodily incorporated into the
structure of the primary reference; nor is it that the claimed
invention must be expressly suggested in any one or all of the
references. Rather, the test is what the combined teachings of
the references would have suggested to those of ordinary skill in
the art.
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In re Keller, 642 F.2d 413, 425 (CCPA 1981). Moreover, Appellant does
not point to any evidence of record that the combination would be “uniquely
challenging or difficult for one of ordinary skill in the art” or “represent[] an
unobvious step over the prior art.” Leapfrog Enters. Inc. v. Fisher-Price,
Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR Int’l Co. v. Teleflex
Inc., 550 U.S. 398, 418–19 (2007)). The Examiner’s findings are reasonable
because the skilled artisan would “be able to fit the teachings of multiple
patents together like pieces of a puzzle” because the skilled artisan is “a
person of ordinary creativity, not an automaton.” KSR, 550 U.S. at 420–21.
We also do not find Rackley and Clisham non-analogous as
Appellant’s argue. See Appeal Brief 28; see also In re Bigio, 381 F.3d 1320,
1325 (Fed. Cir. 2004) (“Two separate tests define the scope of analogous
prior art: (1) whether the art is from the same field of endeavor, regardless of
the problem addressed and, (2) if the reference is not within the field of the
inventor’s endeavor, whether the reference still is reasonably pertinent to the
particular problem with which the inventor is involved.”). We find both
Rackley and Clisham involve communicating electronic content over a
wireless network from a content source to a user’s device. See Rackley’s
Abstract; see also Clisham’s Abstract. Accordingly, we sustain the
Examiner’s obviousness rejection of independent claims 1, 11, and 20,
argued together. See Appeal Brief 30. We also sustain the Examiner’s
obviousness rejections of claims 6, 16, 21–33, 35, 36, 40, 41, 44, 45, 49, 50,
and 52–63, not argued separately. See Appeal Brief 30 (“all depend, directly
or indirectly from Claim 1.”).

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CONCLUSION

Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
41, 50, 54,
60
112 Written
Description
41, 50, 54,
60

1, 6, 11, 16,
20–33, 35,
36, 40, 41,
44, 45, 49,
50, 52–62
112 Indefiniteness 1, 6, 11,
16, 20–33,
35, 36, 40,
41, 44, 45,
49, 50,
52–63

1, 6, 11, 16,
20–22, 25–
28, 30, 31,
35, 36, 40,
41, 44, 45,
49, 50, 52,
55–58, 61–
63
103 Rackley, Clisham 1, 6, 11,
16, 20–22,
25–28, 30,
31, 35, 36,
40, 41, 44,
45, 49, 50,
52, 55–58,
61–63

23 103 Rackley, Hayashi 23
24, 29 103 Rackley, Clisham,
Bemmel
24, 29
32, 33 103 Rackley, Clisham,
Ruano
32, 33
53, 59 103 Rackley, Clisham,
Gobburu
53, 59
54, 60 103 Rackley, Clisham,
Gautier
54, 60
Overall
Outcome
1, 6, 11,
16, 20–33,
35, 36, 40,
41, 44, 45,
49, 50,
52–63

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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)(1)(iv).

AFFIRMED