Michelle Fisher

Patent Trials and Appeals Board

Jun 2, 2020

2020001049 (P.T.A.B. Jun. 2, 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.
14/181,403 02/14/2014 Michelle Fisher BLZMP004C32 8154
12120 7590 06/02/2020
Michelle Fisher
2930 Domingo Ave
Suite 123
Berkeley, CA 94705
EXAMINER
GOYEA, OLUSEGUN
ART UNIT PAPER NUMBER
3687
NOTIFICATION DATE DELIVERY MODE
06/02/2020 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 2020-001049
Application 14/181,403
Technology Center 3600
____________

Before RICHARD M. LEBOVITZ, FRANCISCO C. PRATS, and
JAMIE T. WISZ, Administrative Patent Judges.

LEBOVITZ, Administrative Patent Judge.

DECISION ON APPEAL
The Examiner rejected the claims under 35 U.S.C. § 112 as lacking a
written description. Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from
the Examiner’s decision to reject the claims. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as Michelle
Fisher. Appeal Br. 2.
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STATEMENT OF THE CASE
This appeal is related to Appeal No. 2020-001121 in U.S. Appl. Serial
No. 14/223,505, which has been decided concurrently with this appeal.
Claims 1, 7, 12, 18, 20, 25–30, 37–50, 52–56, 58–63, and 652 stand
rejected by the Examiner 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. Ans. 3.
Independent claim 1 is representative. The claim is reproduced below,
annotated with underlining and bracketed numbering to reference in the
steps in the claim.
1. A method for processing a mobile payment transaction,
comprising:
[1] maintaining a payment method at a management
server;
[2] receiving, at the management server a payment
account identifier from a point of sale terminal, wherein the
point of sale terminal receives the payment account identifier
from a non-browser based application the payment account
identifier selected through user input via a mobile device
display by the user using the non-browser based application to
initiate a mobile payment transaction request, wherein the non-
browser based application maintains the payment account
identifier in a mobile device memory and 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 graphical user interface includes a graphical icon,
the mobile device comprising the mobile device display, a
mobile device processor, the mobile device memory, a mobile
device radio transceiver that supports voice and data
interactions through a first communication channel device using

2 Claims 64 and 66 were included in the statement of the rejection, but they
are listed as cancelled in Claim Appendix of the Appeal Brief.
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at least one of GSM and CDMA and a mobile device wireless
fidelity (Wi-Fi) interface;
[3] transmitting to a transaction server information
related to the payment account identifier and information
related to the payment method that corresponds to the payment
account identifier;
[4] receiving, at the management server, a mobile
payment transaction verification from the transaction server
which processes the mobile payment transaction using
information related to the payment method corresponding to the
payment account identifier, wherein a coupon is applied before
the mobile payment transaction has been completed, wherein
the transaction verification indicates that the mobile payment
transaction has processed; and
[5] after the mobile payment transaction has processed,
sending, from the management server a digital artifact to the
non-browser based application for display within a non-browser
based application generated screen using the mobile device
display, wherein the digital artifact is displayed within the 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.

DISCUSSION
Did the Examiner meet the burden of establishing the inadequacy of the
written description?
Appellant argues that the Examiner did not meet the burden of
challenging the adequacy of the written description. Appeal Br. 12. We do
not agree.
Pending claim 1 was amended extensively during prosecution.3 For
example, on November 28, 2018, claim 1 was amended by adding
limitations [1], [3], and [4].

3 Original claim 1, filed February 14, 2014, is reproduced below:
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The Examiner identified the limitations of claim 1 not disclosed in the
’403 Application.4 Final Act. 3–4. The Examiner described the method
disclosed in the ’403 Application. Final Act. 4–7. The Examiner specifically
identified the difference between the method disclosed in the application and
the claimed method:
The merchant processor processes the transaction using the
payment method(s) selected at the mobile device (mobile wallet).
In other words, the payment methods are selected at the mobile
device (mobile wallet) and used to process the transaction by the
merchant's online processor. This is in contrast to a management
server receiving a payment account identifier, transmitting

1. A method, comprising:
receiving a transaction confirmation from a payment application,,
wherein the management server maintains plurality of user profiles and
digital artifacts;
processing the transaction using the default payment method including
redeeming a coupon during the transaction based on receiving input at the
payment application running on the mobile device from a user to purchase
an item selected at the mobile device, wherein the payment application is a
mobile operating system platform based mobile application preinstalled or
downloaded and installed on the mobile device, the mobile
application maintaining payment account information by using the payment
application in a mobile device memory included in a mobile device, the
mobile device comprising a mobile device display, a mobile device
processor, a mobile device radio interface, and a mobile device wireless
fidelity (Wi-Fi) interface;
selecting a digital artifact based on correlating targeting parameters;
and
sending the digital artifact to the mobile application for [[a]] display
within the specific payment application generated screen in response to a
request from the mobile application for the digital artifact for display within
the specific payment application screen, wherein the specific payment
application generated screen corresponding to a specific screen, scene, or
real estate property.
4 Application Serial No. 14/181,403 in this appeal is referred to as “the ’403
Application.”
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payment information associated with the payment account
information to a transaction server, and receiving a transaction
verification from the transaction server which processes the
transaction.
Final Act. 6.
The Examiner addressed the disclosure in the ’436 Application and
concludes that “there is no support in Applicant’s specification (including
applications incorporated by reference) that the management server receives
payment account identifier from a non-browser based application via a POS
terminal, provides payment method associated with a payment account
identifier to a transaction server, and receives a transaction verification after
processing the transaction.” Final Act. 8. Therefore, the Examiner clearly
articulated why the written description was found to be deficient.

Did Appellant establish that the inventor had possession of the claimed
method?
The ’403 Application describes “a method and system for conducting
an online payment transaction through a point of sale device.” ’403
Application ¶ 4 (in section titled “Brief Summary of the Invention”).
In one implementation described in the ’403 Application,
“authorizations for payment transactions that are made through the point of
sale device 104 are sent from the point of sale device 104 to an issuer
authorization (e.g., management server 106) through the mobile
communication device 102.” ’403 Appl. ¶ 14 (emphasis in the original).
The management server is also described as sending “artifacts” to the
mobile device, upon request, “based on user profile information and/or a
transaction history (or payment trends) associated with a user of the mobile
communication device.” ’403 Appl. ¶ 16.
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The ’403 Application also describes a detailed online payment
transaction, with reference to Figure 4. Figure 4 is reproduced below:

Figure 4 is a diagram of the interactions between a mobile
communication device, online store, personal computer, management server,
and issuer authorization. These interactions are explained in more detail
below.
In this embodiment shown in Fig. 4, a purchase is made from an
online store using a mobile communication device, applying a coupon if
available. ’403 Appl. ¶ 23 (interaction “(1)”). The store sends the transaction
information to the MCD POS (point of sale) vendor plugin (interaction
“(2)”) at the online store, which sends the transaction information to the
“POS midlet 412” which resides on the mobile device (interaction “(3)”).
’403 Appl. ¶ 24. The POS midlet on the mobile device forwards the
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authorization to a payment entity (“issue authorization 418”), which
authorizes the transaction and send the authorization back to the POS midlet
on the mobile device. ’403 Appl. ¶ 25 (interaction “(5)”). The POS midlet on
the mobile device forwards the authorization to the POS vendor plugin at the
online store. ’403 Appl. ¶ 25 (interaction “(6)”). The POS vendor plugin
“forwards the purchase transaction information to the management server
408 for later customer viewing (interaction (7)),” which allows the user to
query the management server to obtain purchase information (interaction
(8)). ’403 Appl. ¶ 25.
In sum, in different embodiments, the management server is also
described in the ’403 Application as serving as a payment issuer
authorization (’403 Appl. ¶ 14), sending “artifacts” to the user (’403 Appl.
¶ 16), providing the user with transaction/purchase information (’403 Appl.
¶ 25).
We turn now to the claim. In rejected claim 1, the management server
receives a payment account identifier from the point of sale terminal (step
[2]), transmits it to a transaction server (step [3]) which processes the
payment and sends the authorization back to the management server (step
[4]). The management server, after the transaction has been processed, sends
a digital artifact to the mobile device (step [5]). As discussed by the
Examiner and described above, the ’403 Application does not describe the
interaction between the management server and a transaction server as
recited in the claims (steps [2]–[4]). There is no transaction server in Figure
4 and none described in the ’403 Application.
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In one disclosed embodiment, the management server can authorize
payments (’403 Appl. ¶ 14), but there is no involvement of a transaction
server as required by the claims.
In other embodiments described above, the management server has no
role in transmitting the payment identifier to a transaction server, such as a
payment entity (’403 Appl. ¶¶ 23–25), as required by the claim. Thus, the
Examiner correctly found that the ’403 Application as filed does not
describe the role of the “management server” recited in the claim and its
interaction with a transaction server. The role for the management server
described in the ’403 Application in these embodiments is for sending
payment information and digital artifacts to the mobile device (’403 Appl.
¶¶ 16, 25), which is also recited in the claim (“after the mobile payment
transaction has been processed, sending, from the management sever using
the first communication channel, a digital artifact” to the mobile device).
Appellant contends that this deficiency in the written description is
made up for by the ’192 Application5 and the ’436 Application,6 which are
incorporated by reference in the ’403 Application.7
To satisfy the written description requirement of 35 U.S.C. § 112, the
inventor must “convey with reasonable clarity to those skilled in the art that,

5 US 2008/0052192 A1, published Feb. 28, 2008; listed in the ’403
Application as Appl. No. 11/933,351.
6 US 2007/0156436 A1, published Jul. 5, 2007; listed in the ’403
Application as Appl. No. 11/467.441.
7 37 C.F.R. § 1.57(d) (emphasis added) states that “‘[e]ssential material’ may
be incorporated by reference, but only by way of an incorporation by
reference to a U.S. patent or U.S. patent application publication.” The ’403
Application, as filed, does not refer to the U.S. patent application publication
number, but only to the application serial number, and therefore does not
comply with 37 C.F.R. § 1.57(d).
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as of the filing date sought, he or she was in possession of the invention.”
Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555, 1563–64 (Fed. Cir. 1991)
(emphasis omitted). “One shows that one is ‘in possession’ of the invention
by describing the invention, with all its claimed limitations.” Lockwood v.
Am. Airlines, Inc., 107 F.3d 1565, 1572 (Fed. Cir. 1997). “A description
which renders obvious the invention for which an earlier filing date is sought
is not sufficient.” Id. at 107 F.3d at 1571–72 (Fed. Cir. 1997). The written
description “need not recite the claimed invention in haec verba but [it] must
do more than merely disclose that which would render the claimed invention
obvious.” ICU Med., Inc. v. Alaris Med. Sys., Inc., 558 F.3d 1368, 1377
(Fed. Cir. 2009). “[I]t is the specification itself that must demonstrate
possession. . . . [A] description that merely renders the invention obvious
does not satisfy the requirement.” Ariad Pharmaceuticals, Inc. v. Eli Lilly
and Co., 598 F.3d 1336, 1352 (Fed. Cir. 2010).
The issue in this rejection is whether the written description provides
adequate evidence that the inventors had possession of a method comprising
step [2] of the management server receiving a payment identifier from the
point of sale terminal, step [3] of transmitting a payment identifier to a
transaction server, and step [4] of receiving, at the management server,
mobile payment transaction verification from the transaction server.
Appellant relies on the disclosures from the ’192 and ’436
Applications incorporated by reference in paragraph 3 of the ’403
Application. We agree that is it permissible to rely on essential material to a
claim, incorporated by reference to a published patent application, to satisfy
the § 112 written description requirement. Incorporation by reference
provides “a method for integrating material from various documents into a
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host document[ ] . . . by citing such material in a manner that makes clear
that the material is effectively part of the host document as if it were
explicitly contained therein.” Advanced Display Sys., Inc. v. Kent State
Univ., 212 F.3d 1272, 1282 (Fed. Cir. 2000). “To incorporate material by
reference, the host document must identify with detailed particularity what
specific material it incorporates and clearly indicate where that material is
found in the various documents.” Id.
The ’403 Application states “[m]obile communication devices – e.g.,
cellular phones, personal digital assistants, and the like – are increasingly
being used to conduct payment transaction, and references the ’192 and ’436
Applications which are said to be “incorporated herein by reference.” ’403
Appl. ¶ 3. Based on this statement, we agree that the skilled worker would
understand that the payment transaction disclosure in these applications are
incorporated by reference into the ’403 Application.
As explained above, the ’403 Application describes the payment
transaction as being between the mobile device (“POS midlet”) and payment
entity (“issue authorization 418).” ’403 Appl. ¶ 25; see also id. at 14 (“In
one implementation, authorizations for payment transactions that are made
through the point of sale device 104 are sent from the point of sale device
104 to an issuer authorization (e.g., management server 106) through the
mobile communication device 102 (as shown in FIG. 1).”). See also Fig. 4
reproduced above. It must be established, therefore, that the inventor had
“possession” of a method in which the payment transaction authorization is
through the management and transaction servers as in steps [2]–[4] of the
claim, instead of being through the mobile device as described in the ’403
Application. It is not enough that the “payment transaction” disclosure from
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the ’192 and ’436 Applications is incorporated into the ’403 Application;
these disclosures, together with the ’403 Application, must “describe” claim
1 with all its limitations in such a way that a person of ordinary skill in the
art would have recognized that the inventors had conceived of the method
which is now claimed.
With respect to step [2], Appellant explains:
Thus, since paragraph 0013 [of the ’403 Application] discloses a
management server receiving transaction information from a
POS device, paragraph 25 [of the ’436 Application] discloses the
POS receives a transaction request from a mobile device,
paragraph 33 [of the ’436 Application] discloses the transaction
request includes an identification code associated with a user,
paragraph 0116 [of the ’192 Application] discloses the
management server storing a code, paragraph 0040 [of the ’436
Application] discloses “For the embodiments described above, .
. . software resident on the management server 180”, paragraph
41 [of the ’436 Application] discloses, “In another embodiment,
the piggybacked payload is sent, instead of to the transaction
server 170, to the management server 180”, and Figure 1 [of the
’436 Application] shows communication to/from management
server and POS terminal, the ordinarily skilled artisan would
appreciate the disclosure and “reasonable clarity” of “receiving
at the management server a payment account identifier
associated with a user from a point of sale terminal”.
Appeal Br. 25 (emphasis omitted).
Appellant has not provided adequate evidence to establish possession
of a method comprising step [2] of rejected claim 1. Paragraph 148 of the
’403 Application states that “payment transactions that are made through the
point of sale device 104 are sent from the point of sale device 104 to an

8 Appellant cites to paragraph 13 for this disclosure. Appeal Br. 22.
However, in the original application, as filed, the disclosure appears in
paragraph 14.
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issuer authorization (e.g., management server 106) through the mobile
communication device 102 (as shown in FIG. 1).” (Emphasis in the
original.) The management server in this embodiment is therefore described
as receiving the payment transaction “through” the mobile device, not from
the point of sale terminal as recited in claim 1 (“receiving at the management
server a payment account identifier associated with a user from a point of
sale terminal”). The ’403 Application further explains, with reference to
Figure 4, that the payment transaction moves between the mobile device and
issue authorization, and then to the POS device.9 Appellant states that the
’403 Application describes “a management server receiving transaction
information from a POS device” is correct (Appeal Br. 25), but it does not
meet step [2] of “receiving at the management server a payment account
identifier associated with a user from a point of sale terminal” to initiate
processing of the purchase; rather only the transaction information is
conveyed to the management server for later viewing by the user. See supra
describing Fig. 4 (interactions (7, 8)). ’403 Appl. ¶ 25.
Appellant asserts that paragraph 41 of the ’436 Application describes
sending a payment identifier to the management server. Appeal Br. 25. This
paragraph further states that the payload is sent “to the management server
180, which can then associate the transaction and notify the transaction
server 170, the POS terminal 150 and/or the POS terminal as needed.” ’436

9 The POS midlet on the mobile device forwards the authorization to a
payment entity (“issue authorization 418”), which authorizes the transaction
and send the authorization back to the POS midlet on the mobile device.
’403 Appl. ¶ 25 (interaction “(5)”). The POS midlet on the mobile device
forwards the authorization to the POS vendor plugin at the online store. ’403
Appl. ¶ 25 (interaction “(6)”).
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Application ¶ 41. Appellant did not explain why one of ordinary skill in the
art, reading the ’403 Application and the ’436 Application, would
understand that the inventors had conceived of and possessed a method
comprising sending the payment identifier to the management server and
then to a transaction server, bypassing the mobile communication device as
described in the ’403 Application (see description above and footnote 9).
Appellant has not pointed to what in the cited applications tells the skilled
worker to direct the payment transaction to management and transaction
servers via the point of sale device instead of the mobile device.
Appellant’s emphasis on “reasonable clarity” as the standard for
meeting the written description requirement is incomplete because the
inventor must “convey with reasonable clarity to those skilled in the art that,
as of the filing date sought, he or she was in possession of the invention.”
Vas-Cath Inc., 935 F.2d at 1563–64 (emphasis added). Here, while it might
be obvious to replace the steps in the method disclosed in the ’403
Application with management and transaction servers as described in the
’436 Application, Appellant has not established that the inventors had
possession of this method. Obviousness is not the standard to meet the
written description requirement. Lockwood, 107 F.3d at 1571–72; ICU Med.,
558 F.3d at 1377; Ariad Pharmaceuticals, 598 F.3d at 1352.
Appellant cites paragraph 116 of the ’192 Application and paragraph
41 of the ’436 Application as describing sending the payment transaction to
the management server and the transaction server, but did not explain why
the skilled worker, reading these disclosures would recognize that the
inventors had possession of a payment method incorporating these steps
(Appeal Br. 30), when the ’403 Application’s method for handling the
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payment transaction is different. “[I]ncorporation by reference does not
convert the invention of the incorporated patent into the invention of the host
patent.” Modine Mfg. Co. v. U.S. Int’l Trade Comm’n, 75 F.3d 1545, 1553
(Fed. Cir. 1996). See also Paice LLC v. Ford Motor Company, 881 F.3d
894, 908 (Fed. 2018) quoting Fifth Generation Comput. Corp. v. Int’l Bus.
Machs. Corp., 416 Fed. Appx. 74, 80 (Fed. Cir. 2011) (“agreeing that certain
prior art references were incorporated into the host patent but disagreeing
‘that every concept of the prior inventions is necessarily imported into every
claim of the later patent’).” Thus, while the ’192 and ’436 Application may
describe aspects of claim 1, they are not necessarily part of the invention
described by the ’403 Application. Appellant cited the incorporated
disclosures, but failed to explain why the skilled worker would have
recognized these steps as part of the invention of the ’403 Application.
With respect to step [3], Appellant explains
Thus, since paragraph 13 [of the ’403 Application] discloses that
the POS terminal transmits transaction requests to a management
server and in ONE embodiment the management server may
authorize the transaction (which means in other embodiments
others servers can authorize the transactions), . paragraph 0116
[of the ’192 Application] discloses that the management server
stores a payment methods associated with a code, Figure 1 [of
the ’436 Application] shows communication from the
management server to the transaction server, paragraph 0040 [of
the ’436 Application] discloses “For the embodiments described
above, . . . software resident on the management server 180”,
paragraph 41 [of the ’436 Application] discloses, “In another
embodiment, the piggybacked payload is sent, instead of to the
transaction server 170, to the management server 180, which can
then associate the transaction and notify the transaction server
170”, it is implied that the management server can transmit
transaction data to the transaction server for processing and the
ordinarily skilled artisan would appreciate the disclosure and
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“reasonable clarity” of “transmitting to a transaction server
information related to the payment account identifier and
information related to the payment method that corresponds to
the payment account identifier”.
Appeal Br. 28–29 (emphasis omitted).
Appellant states that because “in ONE embodiment the management
server may authorize the transaction,” this “means in other embodiments
others servers can authorize the transactions.” Appeal Br. 28 (emphasis
omitted). However, Appellant does not explain how the disclosure of a
management server authorizing a transaction “means” that others servers can
do the same. The test for written description is “possession” of the claimed
invention with all its limitations, not whether a particular limitation would
have been obvious to one of ordinary skill in the art. Lockwood, 107 F.3d at
1571–72.
Appellant further states in this paragraph that “it is implied” in
paragraph 41 of the ’436 Application that “the management server can
transmit transaction data to the transaction server for processing.” Appeal
Br. 29. Appellant has not explained how an “implied” disclosure in a patent
application incorporated by reference establishes that the inventor had
possession of the claimed method with all its limitations.
Appellant also cited paragraph 25 of the ’436 Application as
providing support for receiving transmitting step [3]. Appeal Br. 22. This
paragraph is reproduced below:
The point-of-sale terminal 150 receives one of the transaction
request signals from the mobile device 110 and transmits the one
transaction request signal to the transaction server 170, typically
using a communication channel 160 such as the internet. The
transaction server 170 that receives the one transaction request
signal from the point-of-sale terminal 150 verifies the
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transaction, and forwards a transaction verification signal to the
management server 180. The management server 180 that
receives the transaction verification signal, identifies the user
corresponding thereto, and provides as one of the transaction
signals, a first transaction response signal back to the mobile
device 110.
’436 Appl. ¶ 25.
In this embodiment, the point of sale terminal sends the transaction
request to the transaction server. The transaction server verifies the
transaction and forwards a signal to the management server, which sends a
signal to the mobile device. This sequence of steps is different from the
claimed steps where the management server – not a transaction server –
receives a transaction request (“payment identifier”) in claim 1. It therefore
appears that the ’436 application discloses several different payment
transaction embodiments. Appellant did not explain why the skilled worker
would have recognized that the inventor had possession of a method
comprising one of these embodiments, but not the other.
With respect to step [4] of “receiving, at the management server, a
mobile payment transaction verification from the transaction server,”
Appellant cites to paragraph 116 of the ’192 Application and paragraph 41
of the ’436 Application, but does not explain why the skilled worker would
“appreciate” with “‘reasonable clarity’” a method comprising this step.
Appeal Br. 30.
Appellant’s argument that the ’403 Application coupled with the
disclosures from the ’436 and ’192 Applications describes all the limitations
of the claimed method is cobbling disclosures from three applications in an
attempt to establish written descriptive support for rejected claim 1.
Appellant has not provided an adequate explanation of how these disparate
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disclosures demonstrate the inventor has possession of the claimed
invention.
Independent claims 12 and 20 comprise the same limitations as claim
1, and therefore have the same deficiencies in their written descriptive
support. Dependent claims 7, 12, 18, 25–30, 37–50, 52–56, 58–63, 65 were
not argued separately and therefore fall with claim 1. Appeal Br. 30; 37
C.F.R. § 41.37(c)(1)(iv).

CONCLUSION
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 7, 12, 18,
20, 25–30,
37–50, 52–
56, 58–63,
65
112 Written
Description
1, 7, 12, 18,
20, 25–30,
37–50, 52–
56, 58–63,
65

TIME PERIOD
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