Michelle Fisher

Patent Trials and Appeals Board

Dec 30, 2020

2020001594 (P.T.A.B. Dec. 30, 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.
14/143,085 12/30/2013 Michelle Fisher BLZMP004C28 4018
12120 7590 12/30/2020
Michelle Fisher
2930 Domingo Ave
Suite 123
Berkeley, CA 94705
EXAMINER
GOYEA, OLUSEGUN
ART UNIT PAPER NUMBER
3687
NOTIFICATION DATE DELIVERY MODE
12/30/2020 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 2020-001594
Application 14/143,085
Technology Center 3600
________________

Before JASON V. MORGAN, ERIC B. CHEN, and JAMES B. ARPIN,
Administrative Patent Judges.

MORGAN, 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, 2, 9, 12, 13, 20–22, 31–38, and 41–
51. Appeal Br. 5, 35. Claims 3–8, 10, 11, 14–19, 23–30, 39, and 40 are
canceled. Id. at 2. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
is the inventor and real party in interest appealing the Examiner’s rejection
pro se. Appeal Br. 2, 36 (Aug. 7, 2019).
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SUMMARY OF THE DISCLOSURE
Appellant’s claimed subject matter relates to the receipt of digital
artifacts from a management server by “sending a request for a digital
artifact from a mobile application to the management server for display
within a specific mobile application generated screen, receiving the digital
artifact from the management server, and displaying the digital artifact with
the specific mobile application generated screen.” Abstract.
REPRESENTATIVE CLAIM
(Disputed Limitations Emphasized and Bracketing Added)
1. A method, comprising:
[1] maintaining a non-browser based application in a mobile
device memory included in a mobile device, wherein the non-
browser based application is a mobile operating system
platform 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 a mobile device display, a mobile
device processor, and a mobile device wireless radio transceiver
that supports voice and data interactions through a first wireless
communication channel using at least one of GSM and CDMA,
and a mobile device wireless fidelity (Wi-Fi) transceiver;
[2] receiving, at the non-browser based application, a digital
artifact from a remote management server without a payment
transaction in response to user input at the non-browser based
application, wherein the non-browser based application receives
the user input via the mobile device display; and
[3] displaying the digital artifact within the non-browser based
application.
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REFERENCES
The Examiner relies on the following references:
Name Reference Date
Cox et al. (“Cox”) US 2002/0004855 A1 Jan. 10, 2002
Gobburu et al.
(“Gobburu”)
US 2002/0060246 A1 May 23, 2002
Yang US 2002/0106081 A1 Aug. 8, 2002
Sridhar et al. (“Sridhar”) US 2003/0208754 A1 Nov. 6, 2003
Roever et al. (“Roever”) US 2006/0170759 A1 Aug. 3, 2006
Ruano et al. (“Ruano”) US 2006/0224470 A1 Oct. 5, 2006
Coyer et al. (“Coyer”) US 2007/0204004 A1 Aug. 30, 2007
Kansal et al. (“Kansal”) US 2009/0076906 A1 Mar. 19, 2009
(filed Sept. 14, 2007)
REJECTIONS
The Examiner rejects claims 1, 12, 20, 37, 38, 46, and 50 under 35
U.S.C. § 103(a) as obvious over the combined teachings of Coyer and
Kansal. Final Act. 3–5.
The Examiner rejects claims 2, 13, 21, and 22 under 35 U.S.C.
§ 103(a) as obvious over the combined teachings of Coyer, Kansal, and
Sridhar. Id. at 5–7.
The Examiner rejects claims 9, 41–43, 45, and 49 under 35 U.S.C.
§ 103(a) as obvious over the combined teachings of Coyer, Kansal, and
Gobburu. Id. at 7–10.
The Examiner rejects claims 31–34 under 35 U.S.C. § 103(a) as
obvious over the combined teachings of Coyer, Kansal, and Cox. Id. at 10–
12.
The Examiner rejects claims 35 and 36 under 35 U.S.C. § 103(a) as
obvious over the combined teachings of Coyer, Kansal, and Ruano. Id. at
12–13.
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The Examiner rejects claims 44 and 48 under 35 U.S.C. § 103(a) as
obvious over the combined teachings of Coyer, Kansal, and Roever. Id. at
13–14.
The Examiner rejects claims 47 and 51 under 35 U.S.C. § 103(a) as
obvious over the combined teachings of Coyer, Kansal, Gobburu, and Yang.
Id. at 14–15.
ADOPTION OF EXAMINER’S FINDINGS AND CONCLUSIONS
Except where inconsistent with our findings and analysis below, we
agree with and adopt as our own the Examiner’s findings as set forth in the
Answer and in the Final Action from which this appeal was taken, and we
concur with the Examiner’s conclusions. We have considered Appellant’s
arguments, but we do not find them persuasive of error. We provide the
following explanation for emphasis.
ANALYSIS
In rejecting claim 1 as obvious, the Examiner finds that Coyer’s
storage of media module 50 in memory 66 of wireless device 25 teaches
recitation [1], “maintaining a non-browser based application in a mobile
device memory included in a mobile device” (emphasis added). Final Act. 3
(citing Coyer ¶¶ 26, 38, 42, 56, 69, 70, 77); Ans. 25–26 (Oct. 8, 2019)
(further citing, e.g., Coyer ¶¶ 44, 51, 75). The Examiner relies on Kansal’s
receipt and display of advertisement data to teach recitation [2], “receiving,
at the non-browser based application, a digital artifact from a remote
management server” (emphasis added), and recitation [3], “displaying the
digital artifact within the non-browser based application” (emphasis added).
Final Act. 4 (citing Kansal ¶¶ 33, 36, 41); Ans. 22–24 (further citing, e.g.,
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Kansal ¶¶ 24, 30, 32); see also Ans. 20, 23 (citing Coyer ¶¶ 38, 75, Figs. 1,
2).
Appellant argues that the Appellant’s (i.e., the inventor’s) affidavit,
filed March 6, 2019,
shows that Applicant disclosed transmitting a ticket (“digital
artifact”) to a mobile device in US provisional application No.
60/766,172 filed on 12/31/05 as well as user input to a mobile
application and receiving transaction results at the mobile
application in US Patent Application Publication No.
2007/0156436 (Application No. 11/467,441) filed on August
25, 2006.
Appeal Br. 6. Appellant argues that because both applications “were filed
before the filing date of the Kansa[l] prior art of September 14, 2007,” the
applications “serve as conception and constructive reduction to practice
before the Kansa[l] prior art cited by the Examiner, [and thus,] the prior
art by Kansa[l] [is] not valid.” Id.; see id. at 10–12; Reply Br. 22–23.
All of the Examiner’s obviousness rejections rely on Kansal. Final
Act. 3–15. Thus, whether the Examiner erred in relying on Kansal as prior
art is a threshold issue. Therefore, we first address whether the March 6,
2019, affidavit of Michelle Fisher (“Fisher Affidavit”) and cited evidence
shows that Kansal is not prior art.
According to the Appellant, “the prior art by Kansa[l] is not valid
since applicant disclosed delivering digital artifacts prior to Kansa[l].”
Fisher Affidavit 1. But as Appellant acknowledges, “[p]er section 715.02 of
the MPEP ‘The 37 CFR 1.131(a) affidavit or declaration must establish
possession of either the whole invention claimed or something falling within
the claim (such as a species of a claimed genus), in the sense that the claim
as a whole reads on it.[’]” Appeal Br. 10 (emphasis added); Fisher Affidavit
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2. The Fisher Affidavit purports to show Appellant had possession of
delivery of digital artifacts before Kansal was filed. Fisher Affidavit 1;
Appeal Br. 6. But even if Appellant had possession of digital artifact
delivery before Kansal was filed, claim 1 is not directed to digital artifact
delivery, nor can digital artifact delivery be properly characterized as an
embodiment of (as opposed to mere recitation of limitations of) the
invention of claim 1. Rather, claim 1 merely recites receiving a digital
artifact and displaying it in recitations [2] and [3]. Similarly, claim 1 is not
directed to transmitting user input to a mobile application and receiving
transaction results at the mobile application, but merely includes recitations
regarding user input and receiving a digital artifact “without a payment
transaction.”
Appellant argues that “where the differences between the claimed
invention and the disclosure of the reference(s) are so small as to render the
claims obvious over the reference(s), an affidavit or declaration under 37
CFR 1.131(a) is required to show no more than the reference shows.”
Appeal Br. 11 (citing In re Stryker, 435 F.2d 1340 (CCPA 1971)); Fisher
Affidavit 2. But the differences between Kansal alone and claim 1 are not
minor, unlike the differences between the claimed invention and the art
sworn-behind in Stryker. 435 F.2d at 1341–42 (the sworn-behind reference
was only missing weight limitations, which the Board found lacked
corroborating evidence showing possession). Here the Examiner relies on
Coyer, not Kansal, to teach or suggest many of the recitations of claim 1
(including recitation [1]). Final Act. 3. These are not minor differences that
would have been obvious in light of Kansal alone. Nor is it sufficient to
show possession of delivery of digital artifacts to show possession of these
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additional recitations of claim 1 given that claim 1 does not merely claim
delivery of digital artifacts. In re Spiller, 500 F.2d 1170, 1177 (CCPA 1974)
(a rule 131 affidavit must “establish possession of the invention and not just
of what a reference happens to show if this is ‘wholly outside’ what is being
claimed”).
We have reviewed the Fisher Affidavit in its entirety and find that it
does not establish possession of the claimed invention before Kansal was
filed. Rather, the Fisher Affidavit presents a table of recitations and
disclosures in previously filed patent applications, with portions of the
disclosures emphasized, but with insufficient explanation as to how the cited
portions show possession of the recitations. Fisher Affidavit 10–14. One of
the references cited as evidence of possession of the claimed invention was
even filed after Kansal was filed. See Fisher Affidavit 15 (citing Fisher ’192
(US 2008/0052192 A1; published Feb. 28, 2008; filed Oct. 31, 2007)). The
Fisher Affidavit notes that this reference, Fisher ’192, claims priority to an
earlier patent application. Id. But Fisher ’192 is a continuation-in-part of the
patent application filed earlier. Fisher ’192 ¶ 1. The Fisher Affidavit does
not show that the relied on evidence in Fisher ’192 was also in the earlier-
filed patent application. Fisher Affidavit 10.
For these reasons, we agree with the Examiner that the Fisher
Affidavit “is ineffective to overcome the Kansal reference.” Adv. Act. 2
(Apr. 12, 2019).
Appellant argues that even if the Fisher Affidavit is ineffective, the
Examiner erred because “it can’t be assumed that the media module or
content selection engine [of Coyer] is a non-browser based application[]
since they can be a web browser.” Appeal Br. 12–13. Specifically, Appellant
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argues, “[t]hose skilled in the art know that a web browser operates on a
mobile device [and] can perform operations using plug-ins such as java
script [sic] and the web browser can receive and display information.” Id.
at 30. Appellant further argues, “the media module [of Coyer] can be a web
browser that incorporates Java Script [sic] to gather or generate the
content preference descriptors alleged by the Examiner and . . . displays
the content . . . on the mobile device.” Id. at 32.
Appellant’s arguments are not persuasive because “a prior art
reference must be considered for all that it teaches to those of ordinary skill
in the art, not just the embodiments disclosed therein.” In re Arora, 369 F.
App’x 120, 122 (Fed. Cir. 2010) (citing In re Inland Steel Co., 265 F.3d
1354, 1361 (Fed. Cir. 2001); In re Fritch, 972 F.2d 1260, 1264 (Fed. Cir.
1992)). Thus, even if Coyer specifically teaches an embodiment in which
media module 50 is a browser based application, we also consider whether
Coyer teaches or suggests a non-browser based application. We note,
however, that Appellant does not even allege that Coyer includes such a
browser based application embodiment. Rather, Appellant merely contends
that it cannot be assumed that Coyer’s media module is not a browser based
application. Appeal Br. 12–13. Moreover, Appellant’s argument that the
features of Coyer could be implemented using a browser with JavaScript (id.
at 30, 32) is speculative and does not show that Coyer’s teachings and
suggestions are limited to such a narrow implementation, particularly given
that Coyer fails to even mention JavaScript or browsers.
Appellant similarly argues that Kansal’s “GPS application displays
the advertisements [(i.e., digital artifacts)] since Kansa[l] discloses that
software programs reside in the processor in paragraph 20 which means
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one of the software programs may display the advertisement and the
software programs may be a web browser.” Appeal Br. 13. Similar to
Appellant’s arguments with respect to Coyer, this argument is speculative
and fails to consider all that Kansal teaches or suggests. Many software
programs, not just web browser, are executable by processors. Moreover,
Kansal’s only explicit discussion of browser-based technologies teaches use
of “data related to web-sites the user has visited . . . , data downloaded from
a user’s social networking account . . . , data related to audio and/or video
clips (e.g., songs, videos, etc.), to-do lists, memo applications, gaming
applications, etc.).” Kansal ¶ 31. This disclosure of data used by browser, as
well as non-browser, applications shows that Kansal’s teachings and
suggestions are not limited to embodiments using browser applications.
Appellant further argues that Kansal’s GPS application is a browser
based application because it is connected to a network and, “if the GPS
application is connected to a network it is not a non-browser based
application since the Examiner asserts that a non-browser based
application is when, ‘the non-browser based application is operative when
the mobile device is not connected to a network.’” Appeal Br. 17.
Appellant’s argument is not persuasive because it does not properly
characterize the Examiner’s findings. The Examiner does not make a general
assertion about all non-browser based applications. Rather, the Examiner
merely finds that Coyer teaches a “non-browser based application [that] is
operative when the mobile device is not connected to a network.” Final Act.
5 (citing Coyer ¶¶ 32, 38, 75).
Appellant contends the Examiner err in combining the teachings of
Coyer and Kansal because such a combination “would require an
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impermissible redesign of Coyer to use a single mobile application to
receive and display the content since Coyer positively recites using the
content selection to receive the content and the media module to display
content.” Appeal Br. 22–23; id. at 33–34. Appellant’s argument is not
persuasive because, as the Examiner correctly finds, Coyer’s “media module
(mobile application) comprises a content selection engine.” Ans. 20 (citing
Coyer Figs. 1, 2). Coyer Figure 2, in particular, depicts content selection
engine 56 as part of, not separate from, media module 50.
Appellant also contends the Examiner erred in combining the
teachings of Coyer and Kansal because such a combination “would require
an impermissible redesign of Coyer to be a web browser since Kansa[l] does
not teach or suggest that the GPS application operates offline.” Appeal Br.
26; id. at 32. Appellant’s argument is not persuasive with respect to claim 1
because claim 1 does not recite that the non-browser based application
operates offline.
Even with respect to dependent claims 46 and 50, which recite the
non-browser based application being operative when the mobile device is
not connected to a network, Appellant’s argument is not persuasive. Kansal
discloses employing one or more of a variety of location determination
techniques, not all of which have been shown to require that the device
operate online. Kansal ¶ 23. Thus, we agree with the Examiner that Kansal’s
“device 10 may be arranged to operate in one or more of the described
modes: standalone, MS-assisted or MS-based” and, moreover, “[t]his does
not imply that the GPS application is browser-http based.” Ans. 22.
For these reasons, we agree with the Examiner that the combination of
Coyer and Kansal teaches or suggests disputed recitations [1]–[3].
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Accordingly, we sustain the Examiner’s obviousness rejection under 35
U.S.C. § 103(a) of claim 1, and the Examiner’s obviousness rejections under
35 U.S.C. § 103(a) of claims 2, 9, 12, 13, 20–22, 31–38, and 41–51, which
Appellant does not argue in the Appeal Brief separately with persuasive
specificity. Appeal Br. 35; 37 C.F.R. § 41.41(b)(2).
CONCLUSION
Claims
Rejected 35 U.S.C. § References Affirmed Reversed
1, 12, 20, 37,
38, 46, 50
103(a) Coyer, Kansal 1, 12, 20, 37,
38, 46, 50

2, 13, 21, 22 103(a) Coyer, Kansal,
Sridhar
2, 13, 21, 22
9, 41–43,
45, 49
103(a) Coyer, Kansal,
Gobburu
9, 41–43, 45, 49
31–34 103(a) Coyer, Kansal,
Cox
31–34
35, 36 103(a) Coyer, Kansal,
Ruano
35, 36
44, 48 103(a) Coyer, Kansal,
Roever
44, 48
47, 51 103(a) Coyer, Kansal,
Gobburu, Yang
47, 51
Overall
Outcome
1, 2, 9, 12,
13, 20–22,
31–38, 41–51

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TIME PERIOD FOR RESPONSE
No time period for taking subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED