Alex BeltraniDownload PDFPatent Trials and Appeals BoardJan 14, 202014215587 - (D) (P.T.A.B. Jan. 14, 2020) Copy Citation 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). Appeal 2018-001125 Application 14/215,587 2 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 Appeal 2018-001125 Application 14/215,587 3 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; Appeal 2018-001125 Application 14/215,587 4 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). Appeal 2018-001125 Application 14/215,587 5 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. Appeal 2018-001125 Application 14/215,587 6 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 Appeal 2018-001125 Application 14/215,587 7 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”). Appeal 2018-001125 Application 14/215,587 8 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. Appeal 2018-001125 Application 14/215,587 9 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 Appeal 2018-001125 Application 14/215,587 10 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). Appeal 2018-001125 Application 14/215,587 11 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 Appeal 2018-001125 Application 14/215,587 12 (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 Appeal 2018-001125 Application 14/215,587 13 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: Appeal 2018-001125 Application 14/215,587 14 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 Appeal 2018-001125 Application 14/215,587 15 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). Appeal 2018-001125 Application 14/215,587 16 802.11 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 Appeal 2018-001125 Application 14/215,587 17 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 Appeal 2018-001125 Application 14/215,587 18 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 Appeal 2018-001125 Application 14/215,587 19 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 Appeal 2018-001125 Application 14/215,587 20 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 Appeal 2018-001125 Application 14/215,587 21 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 Appeal 2018-001125 Application 14/215,587 22 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. Appeal 2018-001125 Application 14/215,587 23 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). Appeal 2018-001125 Application 14/215,587 24 AFFIRMED Copy with citationCopy as parenthetical citation