2020000129 (P.T.A.B. Apr. 2, 2021)

iOgrapher, LLC

Patent Trials and Appeals BoardApr 2, 2021

2020000129 (P.T.A.B. Apr. 2, 2021)

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. 15/782,778 10/12/2017 David Basulto iOgrapher-0115-A-US 9120 65449 7590 04/02/2021 PATENT INGENUITY, P.C. 9701 Wilshire Boulevard Suite 1000 Beverly Hills, CA 90212 EXAMINER GEBRIEL, SELAM T ART UNIT PAPER NUMBER 2696 NOTIFICATION DATE DELIVERY MODE 04/02/2021 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): patents@patentingenuity.com ssimpson@patentingenuity.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DAVID BASULTO and JASON IVEY Appeal 2020-000129 Application 15/782,778 Technology Center 2600 Before JAMES B. ARPIN, ADAM J. PYONIN, and PHILLIP A. BENNETT, Administrative Patent Judges. BENNETT, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–8, 10–18, and 20, all of the pending claims. Claims 9 and 19 are cancelled. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. 1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as iOgrapher, LLC. Appeal Br. 2. Appeal 2020-000129 Application 15/782,778 2 CLAIMED SUBJECT MATTER The claims are directed to an apparatus for differently sized mobile devices that perform image capture. Claim 1, reproduced below, is illustrative: 1. An apparatus comprising: a first member; a second member; a third member that couples the first member and the second member such that the second member is parallel to the first member, the third member is perpendicular to the first member and the second member, and the third member is in between the first member and the second member; at least one slot integrated within a rear portion of the third member; and an adjustable member positioned on a front portion of the third member that adheres a mobile computing device to the front portion of the third member, the adjustable member being adjusted within the at least one slot. Appeal Br. 11 (Claims Appendix). REFERENCE The Examiner relies on the following reference: Name Reference Date Ulanzi Smartphone Rig, listing downloaded from Amazon.com, located at https://www.amazon.com/dp/B01N0BGUY8/ref=psdc_196573011_t1_B07 71WRHCPP, hereinafter “Ulanzi”. Appeal 2020-000129 Application 15/782,778 3 REJECTIONS Claims 1–8, 10–18, and 20 stand rejected under pre-AIA 35 U.S.C. § 102(a) as anticipated by Ulanzi. Final Act. 7–11. ISSUE Has the Examiner erred in determining that Ulanzi qualifies as prior art to Appellant’s claims? ANALYSIS The Examiner rejects the claims as anticipated by Ulanzi. Ulanzi is a copy of a product listing from Amazon.com that includes a series of photographs that the Examiner finds disclose each and every element recited in Appellant’s claims. Appellant does not challenge the finding that each element is disclosed. Instead, Appellant challenges Ulanzi’s status as prior art to the claims. The Examiner concludes Ulanzi qualifies as prior art as a printed publication based on information in the product listing stating that the depicted product was first listed for sale on Amazon.com on November 10, 2016, and because the product listing reflects the “seller Ulanzi Direct answering a buyer’s question on November 18, 2016 in page 5 of customer Questions & answer section of the webpage.” Final Act. 3. Appellant contends Ulanzi does not qualify as prior art because the Examiner relies on the photographs included in the product listing, but the Examiner has failed to provide sufficient evidence that the photographs in the product listing existed on November 10, 2016. Appeal Br. 5–7. Specifically, Appellant asserts “the Final Office Action has not provided any evidence that the actual product description of Ulanzi (i.e., the images from Appeal 2020-000129 Application 15/782,778 4 Ulanzi reproduced on pages 5–6 of the Final Office Action) was publicly posted on November 10, 2016.” Appeal Br. 5. We agree with Appellant. The Examiner’s conclusion that Ulanzi is a prior art printed publication rests on an indication in the product listing that the product depictions were available on Amazon.com in November 2016. However, the date the product was listed on Amazon.com is not compelling evidence that the content of listing itself as shown in the document, and the photographs relied on within it to establish anticipation, were published at that time. Selling products online is dynamic. Product listings may be updated, and products may be changed and/or redesigned over time.2 We note, the Examiner does not provide any evidence regarding the date of retrieval of the webpage relied upon. We presume, it was retrieved subsequent to Appellant’s October 12, 2017, filing date.3 Evidence of retrieval of that particular webpage prior to Appellant’s filing date might be sufficient to establish a prima facie case of anticipation. Similarly, an 2 See, e.g., Consumer Reports, Hijacked Reviews on Amazon Can Trick Shoppers (“Review hijackers also exploit Amazon’s mechanism for letting companies list variations on their product,” and one method “sellers can abuse the system is to combine reviews from multiple products they’ve sold over time. A page could sell socks that get great reviews one month, and then the page is revised to start selling headphone adapters the next month”.), located at https://www.consumerreports.org/customer-reviews- ratings/hijacked-reviews-on-amazon-can-trick-shoppers/ (retrieved March 26, 2021). 3 We note Appellant also challenges the Examiner’s determination that the claims are not entitled to claim priority to earlier filed applications. Appeal Br. 6–8. Because we are persuaded by Appellant’s argument that the Examiner has failed to substantiate Ulanzi as having been published prior to the application filing date, we need not consider whether the claims are entitled to an earlier filing date under 35 U.S.C. §§ 119(e) and 120. Appeal 2020-000129 Application 15/782,778 5 Internet Wayback Machine page providing indicia of the date that particular page was crawled and collected into the Wayback Machine database, might similarly suffice. Here, however, the Examiner relies on a statement that a product was made available for sale on a particular date, not that the product listing in question was published on that particular date. Given the dynamic nature of online sales, and given that there may be other, more reliable ways to demonstrate the prior art status of Ulanzi’s content, we agree with Appellant that, on this record, the Examiner does not show sufficiently that the pictures contained in the product listing were available prior to the filing of Appellant’s application. As such, the Examiner fails to set forth a prima facie case of anticipation, and the burden to demonstrate error by bringing forward evidence to the contrary did not shift to Appellant in this case. We, therefore, do not sustain the rejection of the claims under 35 U.S.C. § 102(a). CONCLUSION Because the Examiner has not sufficiently shown that Ulanzi is prior art to Appellant’s claims, we reverse the Examiner’s decision to reject the claims under § 102. DECISION SUMMARY Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–8, 10–18, 20 102 Ulanzi 1–8, 10–18, 20 REVERSED