Ex Parte 7010508 et al

Patent Trial and Appeal Board

Apr 17, 2015

90012671 (P.T.A.B. Apr. 17, 2015)

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.
90/012,671 09/15/2012 7010508 3323.002REX5 1015
26111 7590 04/20/2015
STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
1100 NEW YORK AVENUE, N.W.
WASHINGTON, DC 20005
EXAMINER
REICHLE, KARIN M
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
04/20/2015 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte LAWRENCE B. LOCKWOOD
____________

Appeal 2015-000143
Reexamination Control No. 90/012,671
U.S. Patent 7,010,508 B1
Technology Center 3900
____________

Before ST. JOHN COURTENAY III, CAROLYN D. THOMAS, and
JASON J. CHUNG, Administrative Patent Judges.

COURTENAY, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE

This reexamination proceeding arose from a third-party request by a
Requestor for Ex parte reexamination that was filed on September 15, 2012.
Lawrence B. Lockwood (Appellant, hereinafter “Owner”), the owner of the
patent under reexamination,1 appeals under 35 U.S.C. §§ 134(b) and 306
from a July 31, 2013 Final Rejection of claims 8–15. The Examiner
indicates the patentability of ‘508 patent claims 1–7, 16, and 17 is

1 The U.S. Pat. 7,010,508 B1 involved in this reexamination appeal
proceeding (hereinafter the ‘508 Patent) was issued to inventor Lawrence B.
Lockwood on March 7, 2006.
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confirmed. (Final Action 2). The Examiner withdrew the rejections of new
claims 18–25 in the Answer (3–4). Therefore, new claims 18–25 are not
before us on appeal. An oral hearing was conducted on April 8, 2015.
We have jurisdiction under 35 U.S.C. §§ 134(b) and 306.
We affirm.
Invention
The patent under reexamination on appeal relates to “an economical
means for screening loan applications.” (Col. 1, ll. 46–47.)

Representative Claim
Independent claim 8 is illustrative of the rejected claims on appeal:

8. An automated multimedia system for data processing
for delivering information on request to at least one user,
which comprises:

[a] at least one computerized station;

[b] means for accepting and processing an user's entry
according to backward-chaining and forward-chaining
sequences, including:

[c] means for analyzing and for combining an user's entry
with a set of stored data, and

[d] means, responsive to said means for analyzing and for
combining, for formulating a query and outputting
said query to said user; and

[e] means for delivering information to said user.

(Lettering added. Contested limitation [c] lettered and emphasized.)
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Rejections
A. Claims 8–14 stand rejected under pre-AIA 35 U.S.C. § 102(b) as
being anticipated by Harold E. Johnson Jr. & Piero P. Bonissone,
“Expert System for Diesel Electric Locomotive Repair”, Journal of
Forth Application and Research, vol. 1, no. 1, pp. 7–16, published
Sept. 1983 (hereinafter “Johnson”). (See Non-Final Action 2, mailed
February 20, 2013).
B. Claim 15 stands rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over the combined teachings and suggestions of Johnson
in view of “Principles of Rule-Based Expert Systems”, Advances in
Computers, Academic Press Inc., N.Y., vol. 22, pp. 163–216,
(Marshall C. Yovits, ed. 1983) (hereinafter “Advances In
Computers”). (See Final Action 90; Non-final Action 2).

Grouping of claims
Based on Owner’s arguments, we decide the appeal of the anticipation
rejection of claims 8–14 on the basis of representative claim 8. See 37
C.F.R. § 41.37(c)(1)(iv)(2012). We address rejected claim 15 separately,
infra.

Related Prior BPAI or PTAB Appeals and Proceedings
1. Ex Parte Lawrence B. Lockwood, BPAI Appeal No. 2005-2411,
Application No. 08/418,772, mailed August 30, 2005. The
Examiner’s decision was reversed.

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2. Ex Parte Lawrence B. Lockwood, BPAI Appeal No. 1999-0393,
Application No. 08/418,772, mailed September 25, 2000. The
Examiner’s decision was affirmed-in-part.

3. Ebay Enterprise, Inc. and Ebay, Inc., Petitioners, v. Lawrence B.
Lockwood, Patent Owner, US Pat. 7,010,508 B1, CBM2014-00025.
The CBM proceeding was terminated on October 14, 2014, as a result
of a settlement agreement between the parties.

Related Litigation
Due to the very large number of settled or ongoing district court trial
proceedings, we incorporate herein by reference to the related litigation
listed on pages 7–9 of Owner’s principal Brief.

ANALYSIS
Priority of Invention
Issue 1: Under 35 U.S.C. §120, is the ‘508 patent under
reexamination entitled to the benefit of the May 24, 1984 filing date of U.S.
Patent 4,567,359 to Lawrence B. Lockwood (Owner)?
The first page of the ‘508 patent discloses a priority chain back to the
earliest filed US Pat. No. 4,567,359 (hereinafter the ‘359 patent), for which
the Owner claims the benefit of the May 24, 1984 filing date, as follows:
Related U.S. Application Data Continuation of application
No. 08/347,270, filed on Nov. 30, 1994, now Pat. No.
6,289,319, which is a continuation of application No.
08/096,610, filed on Jul. 23, 1993, now abandoned, which is a
continuation of application No. 07/752,026, filed on Aug. 29,
1991, now abandoned, which is a continuation of application
No. 07/168,856, filed on Mar. 16, 1988, now abandoned, which
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is a continuation of application No. 06/822,115, filed on Jan.
24, 1986, now abandoned, which is a continuation-in-part of
application No. 06/613,525, filed on May 24, 1984, now
Pat. No. 4,567,359.

(See ‘508 patent, page 1).
The Examiner addressed the priority issue in the Order (18–19)
granting the Request,2 and agreed with the Requester, as follows:
12. The ‘508 patent claims priority benefits back to
application 06/613,525, hereinafter also referred to as ‘525 or
the ‘525 application, filed 5/24/1984, now U.S. Patent No.
4,567,359, hereinafter also referred to as ‘359 or ‘359 patent.
One of the references cited in the instant Request, Johnson,
would be available as prior art under 102(a), rather than 102(b),
if the claims were entitled to the benefit of the earliest priority
date. The instant Request alleges, however, that the claims of
the ‘508 patent are not entitled to this earliest date but rather are
at most entitled to the filing date of U.S. Patent Application No.
06/822,115, herein after also referred to as ‘115 or ‘115 CIP.
See the instant Request at pages 2 and 11-21 and paragraph 10
supra.
MPEP 2217 allows a Requester to point out that claims
in a patent are not entitled to the benefit of an earlier priority
date. The present Request, see portions cited in prior paragraph,
provides such a discussion. The Request explains that "…it is
clear that the only patentable feature of the claims of the ‘508
patent is 'processing said operator-entered information,
inquiries, and orders according to backward-chaining and
forward-chaining sequences.' To the extent that that concept has
any support in the specification of the ‘508 patent, that support
first appeared in the ‘115 CIP. In particular, p. 9, line 22-p. 10,
line 2 of the ‘115 CIP specification ... ". [sic] The examiner

2 See Order Granting Request for Ex Parte Reexamination, mailed
December 6, 2012, pages 18–19.
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agrees that ‘525/‘359 does not appear to provide adequate
support for the claims 1-17 of the ‘508 patent under 35 U.S.C.
112, so the claims are not entitled to the benefit of the priority
date of that application/patent. Support for these claims, at the
earliest, appears to be in CIP application 06/822,115, filed
01/24/1986. These claims 1-17 therefore will be examined in
light of the 1986 filing date of the ‘115 CIP.

(Emphasis added.)

Regarding the benefit of priority, our reviewing court guides:

a patent's claims are not entitled to an earlier priority date
merely because the patentee claims priority. Bausch & Lomb,
Inc. v. Barnes–Hind/Hydrocurve, Inc., 796 F.2d 443, 449
(Fed.Cir.1986) (explaining that “the art must have existed as of
the date of invention, presumed to be the filing date of the
application until an earlier date is proved”); see also In re Chu,
66 F.3d 292, 297 (Fed.Cir.1995) (holding that a reference was
properly considered prior art because the earlier filed
application did not support the patent's claims, thereby
precluding reliance on its earlier priority date). Rather, for a
patent's claims to be entitled to an earlier priority date, the
patentee must demonstrate that the claims meet the
requirements of 35 U.S.C. § 120.

In re NTP, Inc., 654 F.3d 1268, 1276 (Fed. Cir. 2011).3

As further indicated by the court in NTP, the burden lies with the
patent owner to demonstrate for each claim on appeal that each patent or
application in the asserted chain of priority claims meet the requirements of

3 We note NTP was cited by Owner in footnote 23 on page 21 of the Appeal
Brief.
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35 U.S.C. § 120. In this reexamination proceeding, we find the Owner has
not shown that each of the ‘508 patent claims 8–15 are entitled to the benefit
of the May 24, 1984 filing date of the ‘359 patent. In particular, we find
Owner’s proffered Exhibit B (see also App. Br. 11–13) does not demonstrate
that each patent or patent application in the chain of priority from the ‘508
patent under reexamination meets each of the multiple requirements clearly
articulated by the court in NTP, as pertaining to each of claims 8–15 before
us on appeal:
Under § 120, a patent is entitled to the priority date of an earlier
filed application if (1) the written description of the earlier filed
application discloses the invention claimed in the later filed
application sufficient to satisfy the requirements of § 112; (2)
the applications have at least one common inventor; (3) the later
application is filed before the issuance or abandonment of the
earlier filed application; and (4) the later application contains a
reference to the earlier filed application. In addition, if the later
filed application claims priority through the heredity of a chain
of applications, each application in the chain must satisfy § 112.
Lockwood v. Am. Airlines, Inc., 107 F.3d 1565, 1571 (Fed. Cir.
1997).

NTP, Inc., 654 F.3d at 1277 (Fed. Cir. 2011).

Further, we note Owner was the named Appellant in Lockwood v. Am.
Airlines, Inc., 107 F.3d 1565 (Fed. Cir. 1997), as cited above by the court in
NTP. 4 In Lockwood, the Federal Circuit reviewed the district court findings

4 As named Appellant, Mr. Lockwood (Owner) is presumed to have had
actual notice of his own appeal to the Federal Circuit and at least

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regarding a different but overlapping chain of priority from US Patent
5,309,355 (to Lockwood) back to the same ‘359 patent for which Owner of
the ‘508 patent (now under reexamination) claims the benefit of the ‘359
patent filing date of May 24, 1984.
In Lockwood, the Federal Circuit upheld the district court in finding
Lockwood’s asserted chain of priority was defective, and further affirmed
the lower court in holding that the ‘359 patent was invalid as being obvious
over a prior art ‘631 patent and the American Airlines SABRE reservation
system, which was in public use in the 1960s and 1970s. See Lockwood,
107 F.3d 1569–72 (Fed. Cir. 1997). The Federal Circuit additionally
affirmed “[t]he district court correctly held that the ‘355 patent was invalid
as anticipated by the ‘359 patent.” (Id. at 1572).
Although we find the multi-prong test in NTP, which places the
burden on the patentee, dispositive for purposes of considering the priority
issue in this reexamination appeal, we nevertheless find the Federal Circuit’s
opinion in Lockwood, 107 F.3d 1569–72, raises substantial and material
questions regarding the overlapping asserted chain of priority we consider
here. We note the invalid ‘359 patent and abandoned CIP application
06/822,115 (filed Jan. 24, 1986) are in the same chain of priority found
defective by the Federal Circuit in Lockwood (i.e., the chain of priority from

constructive notice of the courts’ decision in Lockwood v. Am. Airlines, Inc.,
107 F.3d 1565 (Fed. Cir. 1997). Owner is reminded of the affirmative
duty to disclose all information material to patentability under 37 C.F.R.
§1.56.
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US Pat. 5,309,355 (to Lockwood) back to the same ‘359 patent for which
Owner of the ‘508 patent (now under reexamination) claims the benefit of
the ‘359 patent filing date of May 24, 1984).
Because the multi-prong test articulated by the court in NTP is
dispositive here, and because litigation records revealing the details of the
district court proceedings considered by the court in Lockwood are not of
record here, we need not consider the Federal Circuit’s 1997 Lockwood
decision to decide the issue of priority in this appeal.
However, we bring the related prosecution history in Lockwood to the
attention of our reviewing court in the event of an appeal by the Owner
regarding our Decision.5 To the extent that the Federal Circuit’s decision
regarding priority of invention in Lockwood may be controlling in this
reexamination appeal regarding the asserted chain of priority, or may create
estoppel for the Owner, our decision denying the Owner the benefit of

5 To the extent the ‘359 patent was held invalid on grounds of prior public
use, we note the subject matter of any patent held invalid by a federal court
on grounds of prior public use would appear to lapse into the public domain,
where such subject matter is free to use by anyone, and belongs to no one.
We note the court in Bernhardt, L.L.C. v. Collezione Europa USA, Inc., 386
F.3d 1371, 1381 (Fed. Cir. 2004), stressed that it is necessary to analyze the
evidence of public use in the context of policies that underlie the public use
and on sale bar, that include “discouraging removal of inventions from the
public domain that the public justifiably believes are freely available,
prohibiting an extension of the period for exploiting an invention, and
favoring prompt and widespread disclosure of inventions.” (Internal
quotations omitted, emphasis added). We leave further consideration of this
issue to the Federal Circuit in the event our Decision is appealed.
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priority to the ‘359 patent filing date is in accord with the court’s decision in
Lockwood, which considered an overlapping chain of priority.
For the aforementioned reasons, on this record, we are not persuaded
the Examiner erred in denying the Owner’s claim to the benefit of the ‘359
patent’s May 24, 1984 filing date under 35 U.S.C. §120. (App. Br. 12). We
find the Johnson reference of record is available as a pre-AIA §102(b)
reference. We note an anticipation rejection under §102(b) is a statutory bar
that cannot be overcome with Rule 1.131 declarations and/or evidence,
which we have considered, but dismiss as moot. See Final Rejection (3),
mailed July 31, 2013.

Rejection A of Representative Claim 8

Issue 2: Under § 102(b), did the Examiner err by finding Johnson
discloses the following contested limitation:
[c] means for analyzing and for combining an user's entry
with a set of stored data,

within the meaning of representative claim 8? (Lettering and emphasis
added).
Regarding the anticipation rejection of claim 8 over Johnson, Owner
focuses on the claim term “stored data” and contends:
the Board also should reverse the Examiner's decision because
Johnson, even if deemed a proper reference, does not teach at
least "stored data," as properly construed, e.g., data accessed
from a remote location. The Examiner's claim construction is
legally deficient because it is incomplete and inconsistent with
the specification and prosecution history. Using the proper
construction, Johnson's station completely lacks bidirectional
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communication capabilities because it does not access data
from a remote location (such as a remote financial institution or
remote credit rating service).

(App. Br. 14, emphasis added, footnote references omitted.)
In support, Owner urges: (b) “Patent Owner's construction is
consistent with the prior BPAI decisions during original prosecution”
(App. Br. 15) and, (c) “Johnson discloses a stand-alone computer system
that cannot access data from a remote location.” (App. Br. 16.)
Owner particularly contends:
FIG. 1 of Johnson (reproduced below) is a block diagram of
Johnson's expert system. Viewing FIG. 1, a PHOSITA of expert
systems would understand that the elements of the expert
system correspond to elements of a processor of a computer
system. The "backward interpreter" and "forward interpreter"
correspond to the instruction execution unit; the "rules"
correspond to the machine instructions to be executed by the
execution unit (interpreters); and "new fact" and "existing
facts" correspond to the data the machine instructions (rules)
operate upon. A PHOSITA would not understand the "rules"
of Johnson to be "data," and especially not "stored data" as it is
described throughout the disclosure of the '508 patent, i.e., as
data accessed from a remote computer system.

(App. Br. 34.)
In the Final Rejection (30), which the Examiner incorporated by
reference into the Answer (3), the Examiner reads the contested “set of
stored data” recited in claim 8, on the meta-rules described in Johnson (e.g.,
Figs. 1–2, pp. 8–9):
Therefore Johnson also teaches the ability to automatically and
onsite, i.e. by the computerized station discussed supra (e.g.
PDP 11/23 of field prototype unit), analyze (i.e. engage in
"analysis" of) and combine a user's entry (e.g., initial facts) with
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a set of stored data (e.g., HYPOTHESES, rules) (e.g., "A fixed
sequence of questions is used to gather the initial facts about...
symptoms....A set of meta-rules...retrieves from the various
knowledge spaces the subsets of rules associated with all the
hypotheses that could be relevant to the initial symptoms. This
collection of hypotheses constitutes a preliminary diagnosis",
"The BACKWARD INTERPRETER then tries to evaluate each
hypothesis with the given set of rules and current facts").

Claim Construction
During patent examination, a claim is given its broadest reasonable
construction “in light of the specification as it would be interpreted by one of
ordinary skill in the art.” In re Am. Acad. Of Sci. Tech. Ctr., 367 F.3d 1359,
1364 (Fed. Cir. 2004). However, such an interpretation must not import
limitations from the Specification into the claims. “[A]lthough the
specification often describes very specific embodiments of the invention, we
have repeatedly warned against confining the claims to those embodiments
. . . claims may embrace ‘different subject matter than is illustrated in the
specific embodiments in the specification.’” Phillips v. AWH Corp., 415
F.3d 1303, 1323 (Fed. Cir. 2005) (en banc) (citations and internal quotation
marks omitted).
Although not specifically before us on appeal, we further note
35 U.S.C. § 112, second paragraph, “puts the burden of precise claim
drafting squarely on the applicant.” In re Morris, 127 F.3d 1048, 1056 (Fed.
Cir. 1997). Had the inventor “who was responsible for drafting and
prosecuting the patent, intended something different, it could have prevented
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this result through clearer drafting.” Hoganas AB v. Dresser Indus., Inc., 9
F.3d 948, 951 (Fed. Cir. 1993).6
Although a patent applicant is entitled to be his or her own
lexicographer of patent claim terms, in ex parte prosecution it must be
within limits. In re Corr, 347 F.2d 578, 580 (CCPA 1965). The applicant
must do so by placing such definitions in the Specification with sufficient
clarity to provide a person of ordinary skill in the art with clear and precise
notice of the meaning that is to be construed. See also In re Paulsen, 30

6 During reexamination before the USPTO, we decline to consider the
prosecution history (as a court would in patent infringement litigation) for
purposes of claim construction because reexamination is de novo
examination without deference to the previous examination which
determined patentability in the first instance. See 35 U.S.C. §305. Cf. with
prosecution history estoppel which prevents a patentee from recapturing
through the doctrine of equivalents the subject matter that the applicant
surrendered during prosecution. Festo Corp. v. Shoketsu Kinzoku Kogyo
Kabushiki Co., Ltd., 535 U.S. 722, 734 (2002). Cf. also with the doctrine of
prosecution disclaimer: “[W]here the patentee has unequivocally disavowed
a certain meaning to obtain his patent, the doctrine of prosecution disclaimer
attaches and narrows the ordinary meaning of the claim congruent with the
scope of the surrender.” Omega Engineering, Inc., v. Raytek Corp., 334
F.3d 1314, 1324 (Fed. Cir. 2003). “Claims may not be construed one way in
order to obtain their allowance and in a different way against accused
infringers.” Southwall Technologies, Inc. v. Cardinal IG Co., 54 F.3d 1570,
1576 (Fed. Cir. 1995) (citation omitted). Thus, we find statements by both
Owner and the Examiner that purport to give deference to the prosecution
history for purposes of claim construction during reexamination are
misplaced. See, e.g., App. Br. 14–15; Final Rejection 14. However, we note
that prosecution history is considered by the USPTO for the purpose of
determining attempted recapture of surrendered subject matter in reissue
examinations. See, e.g., In re Clement, 131 F.3d 1464 (Fed. Cir. 1997).

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F.3d 1475, 1480 (Fed. Cir. 1994) (although an inventor is free to define the
specific terms used to describe the invention, this must be done with
reasonable clarity, deliberateness, and precision; where an inventor chooses
to give terms uncommon meanings, the inventor must set out any
uncommon definition in some manner within the patent disclosure so as to
give one of ordinary skill in the art notice of the change).
Here, we find no definition for the contested “set of stored data” in the
claim, or in the ‘508 patent Specification. (Claim 8). Rather, we find the
‘508 patent merely describes non-limiting examples of such data. (See e.g.,
col. 4, ll.22–25). Moreover, during the oral hearing held on April 8, 2015,
Owner’s representative acknowledged there was no definition in the ‘508
patent under reexamination for the contested “stored data” claim term.
Because “applicants may amend claims to narrow their scope, a broad
construction during prosecution creates no unfairness to the applicant or
patentee.” In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379 (Fed.
Cir. 2007) (citation omitted).
We decline Owner’s repeated urging to read the unclaimed adjective
“remote” into the claim. We broadly but reasonably interpret the contested
claim 8 limitation (“a set of stored data”), as reading on any type of data in
any location (e.g., local data, remote data, or data located somewhere in
between). We find no language in independent claim 8 which precludes the
Examiner’s broader reading of the contested “a set of stored data” (claim 8)
on the meta-rules in Johnson. See “Final Rejection” (30).
We have considered all of Owner’s arguments and evidence
presented. However, in light of the controlling case law cited above, and by
the preponderance of evidence, we are not persuaded the Examiner’s broader
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interpretation is overly broad, unreasonable, or inconsistent with Owner’s
‘508 patent Specification.
For these reasons, on this record, we are not persuaded the Examiner
erred regarding the § 102(b) rejection A of representative claim 8.
Accordingly, we sustain the Examiner’s finding of anticipation regarding
independent claim 8. Grouped claims 9–14 fall with claim 8. See 37 C.F.R.
§ 41.37(c)(1)(iv)(2012).
Rejection B of Claim 15 under §103
Owner advances no separate arguments for dependent claim 15.
Arguments not made are considered waived. See 37 C.F.R.
§ 41.37(c)(1)(iv)(2012). Therefore, on this record, we are not persuaded the
Examiner erred regarding rejection B of claim 15. Accordingly, we sustain
the rejection of claim 15.
DECISION
We affirm the Examiner’s decision rejecting claims 8–14 under
§ 102(b).
We affirm the Examiner’s decision rejecting claim 15 under § 103.
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.
§ 41.50(f).
AFFIRMED

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Patent Owner:
Sterne, Kessler, Goldstein & Fox P.L.L.C.
1100 New York Avenue, N.W.
Washington, DC 20005

Third Part Requestor:
Schwegman Lundberg & Woessner/Reexams
PO Box 2938
Minneapolis, MN 55402

ACP