Alex Beltrani

Patent Trials and Appeals Board

Jan 14, 2020

14215587 - (D) (P.T.A.B. Jan. 14, 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.
14/215,587 03/17/2014 Alex Beltrani 2054-2 7984
31554 7590 01/14/2020
Carter, DeLuca & Farrell LLP
576 Broad Hollow Road
MELVILLE, NY 11747
EXAMINER
FEACHER, LORENA R
ART UNIT PAPER NUMBER
3683
NOTIFICATION DATE DELIVERY MODE
01/14/2020 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):
docket@carterdeluca.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ALEX BELTRANI
Appeal 2018-001125
Application 14/215,587
Technology Center 3600
Before BARBARA A. BENOIT, MICHAEL M. BARRY, and
PHILLIP A. BENNETT, Administrative Patent Judges.
BENOIT, 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, 3–10, 12–17, 19, and 20.2 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(a). Appellant identifies the real party in interest as
Gettattle Inc. Appeal Br. 1.
2 Claims 2, 11, and 18 have been cancelled. Final Act. 2; Appeal Br. 15–20
(Claims Appendix).
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CLAIMED SUBJECT MATTER
The claims are directed to mobile systems and methods for collecting
customer feedback. As background, the Specification describes
conventional customer feedback processes for local merchants and
restaurants as being online forums and “archaic processes utilizing paper-
and-pen customer comment cards.” Spec. ¶ 5. In its detailed description of
the invention, the Specification describes collecting customer feedback (such
as through a short, four-question survey) using a mobile device in exchange
for an incentive called a “deal.” Id. ¶¶ 6, 17. Examples of such deals
include discounted or free goods or services. Id. ¶ 55. Customer feedback is
provided over a data communications network to a merchant server and
workstation. Id. ¶¶ 6, 46, Fig. 1.
The Specification describes a customer feedback system shown in
Figure 1, which is set forth below. Id. ¶¶ 17, 46.

Figure 1 depicts customer feedback system 100 having customer devices
200. Id. ¶ 46. Customer feedback system 100 also includes customer and
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merchant server 500 and merchant device 400, which may be a workstation,
personal computer, notebook computer, or tablet computer. Id. Merchant
device 400 manages merchant profile data, including surveys and deals, as
well as other data stored within the server. Id. The Specification also
explains that merchant device 400 can be used to manage historical and
statistical information, such as answers collected in response to surveys and
deal information. Id. ¶¶ 50–51; Fig. 3 (depicting “a block diagram of an
embodiment of a customer and merchant server 500”). For example, deal
information may include “data related to deal redemptions, conversion
(redemption) rates, one or more timestamps indicating when a deal was
issued, [and] when a deal was redeemed.” Id. ¶ 61. As further shown in
Figure 1, merchant device 400 and customer devices 200 communicate over
data network 300. Id. ¶ 46.
Appellant’s claims further limit the invention to delivering the
incentive only after verifying the customer is in a specified geographic
location (such as nearby a particular restaurant) and prohibiting redemption
of the incentive until a predetermined length of time has passed (such as
eight hours). Spec. ¶¶ 56, 65.
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A computer-implemented method for collecting
customer feedback, comprising:
receiving, at a processor, data defining at least one
merchant;
receiving, at the processor, data defining one or more
merchant surveys related to the at least one merchant;
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receiving, at the processor, data defining one or more
merchant deals related to the at least one survey;
receiving, from a customer device, a selected one of the
one or more merchant deals;
receiving, from the customer device, a completed survey
related to the selected one of the one or more merchant deals;
verifying, at the processor, the customer device is within
a specified geographic area when the completed survey is
received;
delivering, in response to receiving the completed survey
from the customer device within the specified geographic area,
the selected one of the one or more merchant deals to a
customer; and
prohibiting redemption of the selected one of the one or
more merchant deals until at least a predetermined length of
time has elapsed from the delivering.
Appeal Br. 15 (Appendix of Claims).
Claims 10 and 17 are independent claims. Appeal Br. 17–18 (claim
10), 19 (claim 17). Claim 10 is directed to a customer feedback system, and
claim 17 is directed to “[n]on-transitory computer-readable media storing
instructions, which, when executed by a processor, cause the processor to
perform a method of collecting customer feedback.” Id. at 19. Each of
independent claims 10 and 17 recites “prohibiting redemption of the selected
one of the one or more merchant deals until at least a predetermined length
of time has elapsed from the delivering.” Id. at 18 (claim 10), 19 (claim 17).
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REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Otto et al. US 2009/0119168 A1 May 7, 2009
Lin et al. US 2010/0121697 A1 May 13, 2010
Tryfon US 2010/0262462 A1 Oct. 14, 2010
Dusig et al. US 2012/0066026 A1 Mar. 15, 2012
Marti et al. US 2012/0270573 A1 Oct. 25, 2012

REJECTIONS
Claims 1, 3–10, 12–17, 19, and 20 stand rejected under 35 U.S.C.
§ 101 as being directed to ineligible subject matter. Final Act. 4–6.
Claims 1, 4, 5, 8, 10, 13–15, 17, and 193 stand rejected under 35
U.S.C. § 103 as being unpatentable over Dusig and Lin. Final Act. 7–10.
Claims 3 and 12 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Dusig, Lin, and Applicant Admitted Prior Art (“AAPA”).
Final Act. 10.
Claims 6 and 7 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Dusig, Lin, and Marti. Final Act. 11–12.
Claims 9, 16, and 20 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Dusig, Lin, and Tryfon. Final Act. 12–14.

3 Claim 19 is addressed on page 10 of the Final Action. Thus, we view the
list of claims as being rejected as obvious over Dusig and Lin on page 7,
which does not include claim 19, as harmless error.
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ANALYSIS
A. Subject Matter Eligibility
Claims 1, 3–10, 12–17, 19, and 20 stand rejected under 35 U.S.C.
§ 101 as being directed to ineligible subject matter. Final Act. 4–6. In
issues involving subject matter eligibility, our inquiry focuses on whether
the claims satisfy the two-step test set forth by the Supreme Court in Alice
Corp. v. CLS Bank Int’l, 573 U.S. 208 (2014). The Supreme Court instructs
us to “[f]irst . . . determine whether the claims at issue are directed to [a] . . .
patent-ineligible concept[]” (id. at 217), and, in this case, the inquiry centers
on whether the claims are directed to an abstract idea. If the initial threshold
is met, we then move to the second step, in which we “consider the elements
of each claim both individually and ‘as an ordered combination’ to
determine whether the additional elements ‘transform the nature of the
claim’ into a patent-eligible application.” Id. (quoting Mayo Collaborative
Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 79, 78 (2012)). The Supreme
Court describes the second step as a search for “an ‘inventive concept’—i.e.,
an element or combination of elements that is ‘sufficient to ensure that the
patent in practice amounts to significantly more than a patent upon the
[ineligible concept] itself.’” Alice, 573 U.S. at 217–18 (quoting Mayo, 566
U.S. at 72–73).
The USPTO has published revised guidance on the application of
§ 101. USPTO’s 2019 Revised Patent Subject Matter Eligibility Guidance,
84 Fed. Reg. 50 (Jan. 7, 2019) (“Guidance”). Recently, the USPTO
published an update that responds to major themes from comments received
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in response to the Guidance.4 See 84 Fed. Reg. 55,942 (Oct. 18, 2019)
(notice regarding availability of the Guidance Update). The Guidance
Update provides further explanation and examples, primarily directed to
examination but also applicable here. Guidance Update, 1.
Under the Guidance, we first look to whether the claim recites:
(1) any judicial exceptions, including certain groupings of abstract
ideas (i.e., mathematical concepts, certain methods of organizing human
activity (such as commercial or legal interactions), or mental processes)
(Guidance, Step 2A, prong 1); and
(2) additional elements that integrate the judicial exception into a
practical application (see Manual of Patent Examining Procedure (MPEP)
§ 2106.05(a)–(c), (e)–(h) (9th Ed., Rev. 08.2017, 2018)) (Guidance, Step
2A, prong 2).
Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we then look to
whether the claim:
(3) adds a specific limitation beyond the judicial exception that is not
“well-understood, routine, conventional” in the field (see MPEP
§ 2106.05(d)); or
(4) simply appends well-understood, routine, conventional activities
previously known to the industry, specified at a high level of generality, to
the judicial exception.
Guidance (Step 2B).

4 https://www.uspto.gov/sites/default/files/documents/peg_oct_2019_
update.pdf (“Guidance Update”).
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1. Examiner’s Determinations and Conclusion
Applying the first step of the Alice inquiry, the Examiner determines
the claims are directed to collecting customer feedback and so are “directed
to a judicial exception (i.e., a law of nature, a natural phenomenon, or an
abstract idea) without significantly more.” Final Act. 4. The Examiner
describes the claimed process as “receiving data defining a merchant,
receiving data defining merchant surveys, receiving data defining merchant
deals related to the at least one survey, selecting one or more merchant deals,
receiving a completed survey related to a deal, verifying the customer device
is within a specified geographic area, delivering the selected merchant deal
and prohibiting redemption of the deal for a length of time,” which “describe
the abstract idea.” Id. at 4–5. The Examiner determines these steps are
similar to the steps of comparing data in CyberSource Corp. v. Retail
Decisions, Inc., 654 F.3d 1366 (Fed. Cir. 2011). Id. at 5.
The Examiner further determines that the additional elements consist
of “generic computer components performing generic functions routinely
used in computer applications” and are “well-understood and routine
activities [that] amount to no more than implementing the abstract idea using
a computer.” Final Act. 5–6. As such, the Examiner concludes that the
additional elements when considered individually or as an ordered
combination do not amount to significantly more than the abstract idea. Id.
at 6.
On this basis, the Examiner concludes the claims are directed to
patent-ineligible subject matter. Id.
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2. Appellant’s Contentions
Appellant asserts the Examiner’s characterization of the claims is
wrong because, unlike the claims in CyberSource, the claims here “could not
be performed without a machine.” Appeal Br. 8. Rather, according to
Appellant, the claim limitation “verifying, at the processor, the customer
device is within a specified geographic area when the completed survey is
received” (“the verifying limitation”) cannot be performed without a
machine as described in paragraph 65 of the Specification:
[An] “active radius” merchant data field merchant may be
provided to enable a merchant to specify a geographic area in
which a customer must be located in order to complete a survey
for that merchant. . . . In some embodiments, the active radius
may be defined in units of 1/100 of a mile (e.g., roughly 50 feet).
In use, the customer’s position, which may be determined from
GPS receiver 275, cellular triangulation, and/or WiFi geolo-
cation, is compared to the merchant’s active radius area. If is it
determined the customer is within the merchant’s active radius
area, that merchant’s active deal and/or surveys may be presented
to the customer who, in turn, may select and complete a survey
to obtain a deal.
Appeal Br. 8–9 (quoting Spec. ¶ 65). As such, Appellant asserts the
verifying limitation “cannot be completed without a machine in a similar
manner to the claims at issue in [SiRF Technology, Inc. v. International
Trade Commission, 601 F.3d 1319 (Fed. Cir. 2010)]” and, therefore, the
claims include patent eligible subject matter. Appeal Br. 9. In the Reply
Brief, Appellant maintains its assertion without providing additional
arguments. See Reply Br. 2 (“Appellant respectfully submits that ‘verifying,
at the processor, the customer device is within a specified geographic area
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when the completed survey is received’ is integral to the claimed method
and requires at least one machine to perform the step.”).
3. Guidance, Revised Step 2A, Prong One: Judicial Exception5
The Guidance instructs us first to determine whether any judicial
exception to patent eligibility is recited in the claim. As explained by the
Guidance Update, when determining whether a claim recites a judicial
exception, the claim should be evaluated for whether it sets forth or
describes a judicial exception in accordance with the Guidance’s certain
groupings of abstract ideas—(1) mathematical concepts; (2) certain methods
of organizing human activity such as commercial or legal interactions; and
(3) mental processes. See Guidance, 84 Fed. Reg. at 54 (Step 2A, Prong
One); Guidance Update, 1–9 (evaluating whether a claim recites a judicial
exception at Step 2A Prong One).
As shown below, Appellant’s claims include limitations that fall
within the USPTO’s enumerated groupings of abstract ideas: certain
methods of organizing human activity, such as commercial or legal
interactions, which in turn includes “advertising, marketing, or sales
activities or behaviors.”
Claim 1 sets forth “[a] computer-implemented method for collecting
customer feedback” that recites five limitations for receiving data:
“receiving . . . data defining at least one merchant; receiving. . . data
defining one or more merchant surveys related to the at least one merchant;
receiving . . . data defining one or more merchant deals related to the at least

5 Throughout this opinion, we give the claim limitations the broadest
reasonable interpretation in light of the Specification. See In re Morris, 127
F.3d 1048, 1054 (Fed. Cir. 1997).
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one survey; receiving . . . a selected one of the one or more merchant deals;
[and] receiving . . . a completed survey related to the selected one of the one
or more merchant deals.” Appeal Br. 15 (Appendix of Claims). Claim 1
also sets forth the following limitations: “verifying . . . the customer device
is within a specified geographic area when the completed survey is received;
delivering, in response to receiving the completed survey . . . within the
specified geographic area, the selected one of the one or more merchant
deals to a customer; and prohibiting redemption of the selected one of the
one or more merchant deals until at least a predetermined length of time has
elapsed from the delivering.” Id.
For the reasons explained below, these limitations recite a judicial
exception—advertising, marketing, or sales activities or behaviors of the
enumerated sub-group commercial or legal interactions of the enumerated
grouping certain methods of organizing human activity. Guidance, 84 Fed.
Reg. at 52; Guidance Update, 4–9. More specifically, Appellant’s claimed
computer-implemented method sets forth a process for “collecting customer
feedback” including five limitations for receiving data related to collecting
customer feedback—receiving (i) data defining a one merchant, (ii) data
defining a merchant survey related to the merchant, (iii) data defining a
merchant deal related to the survey, (iv) a selected merchant deal, and (v) a
completed survey related to the selected merchant deal. Receiving data
related to collecting customer feedback is an advertising, marketing, or sales
activity or behavior.
Appellant’s computer-implemented method of claim 1 also describes
(i) verifying a customer (or the customer device as a proxy) within a
specified geographic area when the completed survey is received and
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(ii) delivering, in response to receiving the completed survey within the
specified geographic area, the selected merchant deal to a customer, both of
which describe customer interactions, which are advertising, marketing, or
sales activities or behaviors. According to the Specification, these
limitations “enable[] a merchant to ensure that a customer is actually visiting
a merchant’s establishment, or is within a merchant-defined radius, before
the customer can complete a survey and qualify for a deal” (Spec. ¶ 65),
which relates to advantageously providing an incentive to collect customer
feedback.
Appellant’s computer-implemented method of claim 1 further
describes prohibiting redemption of the merchant deal until a predetermined
length of time has elapsed since delivering the merchant deal. This
limitation describes an effective redemption time range, which precludes
customers “from applying a newly-acquired deal to the instant merchant
interaction (e.g., the instant restaurant visit) giving rise to the survey.” Spec.
¶ 56. An effective redemption time range encourages a customer “to return
to the merchant to actualize the benefits of the deal.” Id. This limitation
relates to customer interactions and, therefore, recites an advertising,
marketing, or sales activity or behavior.
Turning to Appellant’s arguments regarding SiRF, we are not
persuaded that the verifying limitation of claim 1 “cannot be completed
without a machine in a similar manner to the claims at issue in SiRF” and so
precludes a finding that the claims recite an abstract idea. Appeal Br. 9; see
Reply Br. 2. Appellant’s analogy, as described above, is based on paragraph
65 of the Specification that describe techniques for determining an “active
radius” of a merchant “to enable a merchant to specify a geographic area in
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which a customer must be located in order to complete a survey for that
merchant.” Spec. ¶ 65. The specific techniques are identified as examples:
In some embodiments, the active radius may be defined in units
of 1/100 of a mile (e.g., roughly 50 feet). In use, the customer’s
position, which may be determined from GPS receiver 275,
cellular triangulation, and/or WiFi geolocation, is compared to
the merchant’s active radius area.
Spec. ¶ 65 (emphasis added); see id. ¶¶ 47, 49, 65, Fig. 3. As such,
Appellant’s argument relies on examples in the Specification not required by
the claim and is unpersuasive. We agree with the Examiner that the
verifying limitation is more like the claims at issue in CyberSource than
SiRF because the claims here, unlike those in SiRF, do not require the use of
a GPS receiver and a GPS receiver is not integral to the claims. Ans. 12–13.
For these reasons, we conclude that claim 1 recites a judicial
exception, which falls into the Guidance grouping of certain methods of
organizing human activity—advertising, marketing, or sales activities or
behaviors that is subject matter relating to the enumerated sub-group of
commercial or legal interactions of certain methods of organizing human
activity. Guidance, 84 Fed. Reg. at 52; Guidance Update, 2.
4. Guidance, Revised Step 2A, Prong Two:
Integration of the Judicial Exception into a Practical Application
Having determined that claim 1 recites a judicial exception as set forth
in the claim limitations, our analysis under the Guidance turns to
determining whether there are “additional elements that integrate the judicial
exception into a practical application of that exception.” See Guidance, 84
Fed. Reg. at 54. Under the Guidance, limitations that are indicative of
“integration into a practical application” include:
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1. Improvements to the functioning of a computer, or to any other
technology or technical field — see MPEP § 2106.05(a);
2. Applying the judicial exception with, or by use of, a particular
machine — see MPEP § 2106.05(b);
3. Effecting a transformation or reduction of a particular article to
a different state or thing — see MPEP § 2106.05(c); and
4. Applying or using the judicial exception in some other
meaningful way beyond generally linking the use of the judicial
exception to a particular technological environment, such that
the claim as a whole is more than a drafting effort designed to
monopolize the exception — see MPEP § 2106.05(e).
In contrast, limitations that are not indicative of “integration into a
practical application” include:
1. Adding the words “apply it” (or an equivalent) with the judicial
exception, or merely include instructions to implement an
abstract idea on a computer, or merely uses a computer as a tool
to perform an abstract idea – see MPEP § 2106.05(f);
2. Adding insignificant extra-solution activity to the judicial
exception — see MPEP § 2106.05(g); and
3. Generally linking the use of the judicial exception to a
particular technological environment or field of use — see
MPEP 2106.05(h).
See 2019 Guidance, 84 Fed. Reg. at 54–55 (“Prong Two”).
As noted above, Appellant’s claim 1 sets forth “[a] computer-
implemented method for collecting customer feedback” and describes
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various receiving limitations that describe the use of computer components
(“at a processor” or “from a customer device”).6 Appeal Br. 15.
We do not find these additional limitations sufficient to integrate the
judicial exception into a practical application. That the claim sets forth a
computer-implemented method requires, at best, that a computer be used to
collect customer feedback and so is an example of a computer merely being
used as a tool to perform the judicial exception, which is not sufficient to
integrate an abstract idea into a practical application. MPEP § 2106.05(f).
The receiving limitations also only describe using a “processor” or “a
customer device” as a tool to perform the judicial exception, which is not
sufficient to integrate a judicial exception into a practical application.
MPEP § 2106.05(f). The receiving limitations are described at a high level
of generality. Notably, too, claim 1 describes “a processor” without
specifying a particular machine that includes the processor. The “customer
device” is described by the Specification as using well-known technology or
being a generic device. See Spec. ¶ 46 (“Customer devices 200 [shown in
Figure 1] may include any suitable mobile device adapted for mobile
communication” “such as, without limitation, a wireless (e.g., cellular or
‘WiFi’), communication network supporting any suitable data transmission
protocol including without limitation CDMA, TDMA, GSM, TCP/IP,

6 Specifically, claim 1 recites “receiving, at a processor, data defining at
least one merchant; receiving, at the processor, data defining one or more
merchant surveys related to the at least one merchant; receiving, at the
processor, data defining one or more merchant deals related to the at least
one survey; receiving, from a customer device, a selected one of the one or
more merchant deals; receiving, from the customer device, a completed
survey related to the selected one of the one or more merchant deals”
(emphasis added).
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802.11 WiFi, and the like.”), Fig. 1 (apparently showing a mobile phone or
messaging device, a tablet, and a laptop as customer devices 200).
Similarly, the verifying limitation does not require a GPS receiver but,
to the extent a GPS receiver is used to perform the required verifying, the
GPS receiver described by the Specification is a generic GPS receiver in a
customer device. Spec. ¶¶ 47, 49, 65, Fig. 3.
For these reasons, we determine that claim 1 does not set forth any
limitations describing improvements to the functioning of a computer or
effecting a transformation or reduction of a particular article to a different
state or thing. See MPEP § 2106.05(a), (c). Rather, claim 1 sets forth
limitations that merely uses a computer as a tool to perform the judicial
exception or, at best, add insignificant extra-solution activity to the judicial
exception (such as receiving data at a processor or receiving data from a
customer device). See MPEP § 2106.05(f), (g). Furthermore, the
Specification indicates that the invention is said to address the business
problem of collecting customer feedback, which further supports a finding
that the claims are not directed toward an improvement in technology.
Spec. ¶ 5.
Accordingly, we determine that the additional elements recited in
claim 1 are not sufficient to integrate the recited judicial exception into a
practical application. Accordingly, we conclude claim 1 is directed to a
judicial exception.
5. Guidance, Step 2B
Having determined the claim is directed to a judicial exception, we
proceed to evaluating whether the claim adds a specific limitation beyond
the judicial exception that is not “well-understood, routine, conventional” in
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the field (see MPEP § 2106.05(d)) or simply appends well-understood,
routine, conventional activities previously known to the industry, specified
at a high level of generality, to the judicial exception. See Guidance, 84 Fed.
Reg. at 56.
The Examiner determined that the additional elements consist of
“generic computer functions performing generic functions routinely used in
computer applications” and are “well-understood and routine activities [that]
amount to no more than implementing the abstract idea using a computer.”
Final Act. 5–6. Appellant does not challenge the evidentiary basis of the
Examiner’s determination. See Appeal Br. 7–10; Reply Br. 2; see
37 C.F.R. § 41.37(c)(1)(iv) (requiring the Appeal Brief to specific Examiner
error).
We note that claim 1 recites functions of receiving data, verifying,
delivering, and prohibiting redemption at a high-level of generality and, as
disclosed by the Specification, each uses well-known technology as
discussed above. See, e.g., Spec. ¶¶ 46, 47, 49, 65, Figs. 1, 3. Thus, we
agree with the Examiner that the limitations individually do not amount to
significantly more than the judicial exception. Even when considered in
combination, the additional elements of a processor and a client device are
not arranged in an unconventional manner so as to provide an inventive
concept sufficient to transform the judicial exception into patent-eligible
subject matter.
Because the Examiner correctly concluded claim 1 “is directed to a
judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract
idea) without significantly more” (Final Act. 4), and because Appellant does
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not identify any error in the Examiner’s determination under step 2B of the
Guidance, we sustain the rejection of claim 1 under 35 U.S.C. § 101.
Appellant does not present additional arguments pertaining to any
other claim. See Appeal Br. 9 (indicating the reasons asserted with regard to
claim 1 apply to independent claims 10 and 17). Accordingly, we treat
claim 1 as representative, and we sustain the rejection of the pending claims
under 35 U.S.C. § 101. 37 C.F.R. § 41.37(c)(1)(iv).
B. Obviousness
Claims 1, 3–10, 12–17, 19, and 20 stand rejected under 35 U.S.C.
§ 103 as being obvious over the Examiner’s combination Dusig and Lin,
alone or combined with other references. Final Act. 7–10 (rejecting
claims 1, 4, 5, 8, 10, 13–15, 17, and 19 over Dusig and Lin), 10 (rejecting
claims 3 and 12 over Dusig, Lin, and AAPA), 11–12 (rejecting claims 6 and
7 over Dusig, Lin, and Marti), 12–14 (rejecting claims 9, 16, and 20 over
Dusig, Lin, and Tryfon).
1. Dusig and Lin
In rejecting claim 1 under § 103, the Examiner relies on the combined
teaching of Dusig and Lin and specifically relies on Lin for disclosing
“prohibiting redemption of the selected one of the one or more merchant
deals until at least a predetermined length of time has elapsed from the
delivering,” recited by claim 1. Final Act. 8. Dusig describes techniques
related to market research surveys issued to a consumer based on the
physical location of the user, and Lin describes techniques used by “a mobile
targeted coupon distributor.” Dusig ¶ 6; Lin Abstr. Among various coupon
redemption restrictions, Lin describes “timing restrictions, restricting the
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dates, times of day, and/or the like when a coupon may be redeemed.” Lin
¶ 38.
The Examiner finds that Lin’s paragraph 38 discloses “one or more
coupon restrictions may include timing restrictions restricting the dates,
times of day and/or the like when a coupon may be redeemed, where a
specified date or a time of day may indicate an elapsed time.” Ans. 6. The
Examiner further finds that
[i]t would have been obvious to one of ordinary skill in the art at
the time of the invention to combine the marketing research and
offer processing functionality using mobile devices as in Dusig
with the timing restrictions of Lin to enable a vendor to impose
offer restrictions which provides them more control over offer
redemptions.
Final Act. 8.
Appellant acknowledges that the cited portion of Lin (paragraph 38)
describes that coupon restrictions can include “timing restrictions, restricting
the dates, times of day, and/or the like when a coupon may be redeemed” but
asserts that such a description is insufficient to disclose or suggest the
required prohibiting redemption “until at least a predetermined length of
time has elapsed from . . . delivering” the merchant deal. Appeal Br. 11;
Reply Br. 3.
In response to Appellant’s challenge, the Examiner maintains the
finding:
Dusig discloses identifying a location of a mobile device
and allocating an offer to a user (see ¶0098 and ¶00152). Lin
discloses a coupon distributor which may impose restrictions on
coupons such as timing restrictions including restricting dates
and time of day a coupon may be redeemed. (see ¶0038). The
functionality of Lin demonstrates restricting or prohibiting
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redemption for specific date(s) or a specific time of day from the
point of delivery which would equate to an elapsed time.
Therefore, Lin does teach and suggest this limitation. Further, it
would be obvious to combine the coupon allocation functionality
of Dusig with the coupon timing restrictions of Lin to enable
vendors to have more control over offer redemptions.
Ans. 13.
We are not persuaded by Appellant’s arguments that Lin’s restricting
coupon redemption dates and times fails to disclose or suggest “prohibiting
redemption of the selected one of the one or more merchant deals until at
least a predetermined length of time has elapsed from the delivering,” as
recited in claim 1. Even if Lin’s timing restrictions when a coupon may be
redeemed are so narrowly viewed as only expressly disclosing permitted
times of coupon redemption, the timing restrictions at least suggest
prohibiting times of coupon redemption. See Lin ¶ 38 (describing timing
restrictions when a coupon may be redeemed). For example, permitting
coupon redemption only between certain times necessarily restricts coupon
redemption at all other times. Thus, even if Lin does not disclose expressly
prohibiting redemption until a period of time has elapsed since the coupon
was delivered, Lin’s timing restrictions when a coupon may be redeemed are
sufficiently close to at least suggest to one of ordinary skill in the art
prohibiting redemption for a specific amount of time based on Lin’s
undisputed disclosure of temporal redemption limits.
For these reasons, we sustain the Examiner’s obviousness rejection of
claim 1 under 35 U.S.C. § 103 as unpatentable over Dusig and Lin.
Appellant argues independent claims 1, 10, and 17 together. See
Appeal Br. 11. In addition, each of claims 4, 5, 8, 13–15, and 19 depends
(directly or indirectly) from one of the independent claims. Because
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Appellant has not separately argued the merits of claims 4, 5, 8, 10, 13–15,
17, and 19 from that of claim 1, these claims stand or fall with independent
claim 1. 37 C.F.R. § 41.37(c)(1)(iv). Accordingly, we sustain the
Examiner’s obviousness rejection of claims 4, 5, 8, 10, 13–15, 17, and 19
under 35 U.S.C. § 103 as unpatentable over Dusig and Lin.
2. Dusig, Lin, and AAPA
Claims 3 and 12 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Dusig, Lin, and AAPA. Final Act. 10. Claims 3 and 12
that depend from independent claim 1 or independent claim 10, respectively,
and additionally require a “predetermined length of time is eight hours.”
Appellant argues that the Non-Final Action does not indicate
adequately that the Examiner was taking “Official Notice” regarding “the
predetermined length of time is eight hours,” and, therefore, the Examiner’s
rejection of claims 3 and 12 over Dusig, Lin, and AAPA in the Final Action
is improper under MPEP § 2144.03(c). Appeal Br. 6–7. As the MPEP §
2144.03(c) explains:
If applicant does not traverse the examiner’s assertion of official
notice or applicant’s traverse is not adequate, the examiner
should clearly indicate in the next Office action that the common
knowledge or well-known in the art statement is taken to be
admitted prior art because applicant either failed to traverse the
examiner’s assertion of official notice or that the traverse was
inadequate.

In response to Appellant’s argument, the Examiner relies on Otto as
disclosing “applying a specified time constraint of eight hours” to support
the Examiner’s finding that Dusig, Lin, and Otto together teach and suggest
the predetermined length of time (eight hours) required by claims 3 and 12.
Ans. 14. Accordingly, the Examiner supports the finding with adequate
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evidence (Otto) after Appellant challenged Examiner’s assertion. Ans. 14.
Thus, to the extent (if at all) that the Examiner’s factual finding was not
properly officially noticed or not properly based upon common knowledge
in the Final Action, the Examiner properly addressed Appellant’s challenge
in the Answer. MPEP § 2144.03(c).
In its Reply Brief, Appellant does not contest the Examiner’s reliance
on Otto or otherwise contest the Examiner’s findings regarding claims 3 and
12 and so has not persuaded us of Examiner error. See generally Reply Br.
2–3. Thus, we sustain the Examiner’s obviousness rejection of claims 3 and
12. 37 C.F.R. § 41.37(c)(1)(iv).
3. Remaining Obviousness Rejections
Claims 6 and 7, which depend (directly or indirectly) from
independent claim 1, stand rejected under 35 U.S.C. § 103 as being
unpatentable over Dusig, Lin, and Marti. Final Act. 11–12. Because
Appellant has not separately argued the merits of claims 6 and 7 from that of
claim 1, these claims stand or fall with independent claim 1. 37 C.F.R.
§ 41.37(c)(1)(iv). Accordingly, we sustain the Examiner’s obviousness
rejection of claims 6 and 7 under 35 U.S.C. § 103 as unpatentable over
Dusig, Lin, and Marti.
Claims 9, 16, and 20, which depend (directly or indirectly) from one
of independent claims 1, 10, and 17, stand rejected under 35 U.S.C. § 103 as
being unpatentable over Dusig, Lin, and Tryfon. Final Act. 12–14. Because
Appellant has not separately argued the merits of claims 9, 16, and 20 from
that of claim 1, these claims stand or fall with independent claim 1.
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Accordingly, we sustain the Examiner’s obviousness rejection of
claims 9, 16, and 20 under 35 U.S.C. § 103 as unpatentable over Dusig, Lin,
and Tryfon.
CONCLUSION
The Examiner’s rejection of claims 1, 3–10, 12–17, 19, and 20 is
AFFIRMED.
More specifically, we affirm the Examiner’s rejections of claims 1, 3–
10, 12–17, 19, and 20 under 35 U.S.C. § 101 and under 35 U.S.C. § 103.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
References/Basis Affirmed Reversed
1, 3–10, 12–
17, 19, 20
101 Eligibility 1, 3–10, 12–
17, 19, 20

1, 4, 5, 8,
10, 13–15,
17, 19
103 Dusig, Lin 1, 4, 5, 8,
10, 13–15,
17, 19

3, 12 103 Dusig, Lin,
AAPA (Otto)
3, 12
6, 7 103 Dusig, Lin, Marti 6, 7
9, 16, 20 103 Dusig, Lin,
Tryfon
9, 16, 20
Overall
Outcome
1, 3–10, 12–
17, 19, 20

TIME PERIOD FOR RESPONSE
No time period for taking any 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).
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AFFIRMED