Ex Parte Cunescu et al

Board of Patent Appeals and Interferences

Feb 28, 2012

11526444 (B.P.A.I. Feb. 28, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/526,444 09/25/2006 Alexandru Cunescu P00135-US-UTIL 3869
98665 7590 02/29/2012
Otterstedt, Ellenbogen & Kammer, LLP
P.O Box 381
Cox Cob, CT 06807
EXAMINER
ZIEGLE, STEPHANIE M
ART UNIT PAPER NUMBER
3694
MAIL DATE DELIVERY MODE
02/29/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte ALEXANDRU CUNESCU, DAVID A. ROBERTS,
and DAVID BIBBY
____________________

Appeal 2010-008580
Application 11/526,444
Technology Center 3600
____________________

Before: MURRIEL E. CRAWFORD, HUBERT C. LORIN, and JOSEPH
A. FISCHETTI, Administrative Patent Judges.

FISCHETTI, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF CASE
Appellants seek our review under 35 U.S.C. § 134 from the
Examiner’s final rejection of claims 2, 4, 5, 7, 11, 14-21, 24, and 25. Claims
1, 3, 6, 8-10, 12, 13, 22, and 23 are canceled. We affirm.

THE CLAIMED INVENTION
Appellants claim a payment apparatus and method (Specification
1:11-12). Claims 2 and 5 are illustrative of the claimed subject matter:
2. A method comprising the steps of:
detecting a requirement to top up an offline balance of a
payment device having an online-capable application and a
primarily offline payment application, said offline balance
being a balance of said primarily offline payment application,
said payment device comprising:
a body portion;
a memory associated with said body portion, said
memory containing:
said online-capable application; and
said primarily offline payment application,
having said offline balance; and
at least one processor associated with said body
portion and coupled to said memory; and
topping up said offline balance substantially
contemporaneously with a separate online transaction between
said payment device and a terminal;
wherein:
said detecting step comprises:
said terminal conducting a first transaction with
said online-capable application in said memory of said
payment device, said first transaction being said online
transaction; and
said terminal reading a value of said offline
balance from said memory of said payment device; and
said topping up step comprises:
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said terminal conducting a second transaction with
said primarily offline payment application in said
memory of said payment device, to top up said value of
said offline balance, if said offline balance requires
topping up.

5. A method comprising the steps of:
detecting a requirement to top up an offline balance of a
payment device having an online-capable application and a
primarily offline payment application, said offline balance
being a balance of said primarily offline payment application,
said payment device comprising:
a body portion;
a memory associated with said body portion, said
memory containing:
said online-capable application; and
said primarily offline payment application,
having said offline balance; and
at least one processor associated with said body
portion and coupled to said memory; and
topping up said offline balance substantially
contemporaneously with a separate online transaction between
said payment device and a terminal;
wherein:
said detecting step comprises said at least one processor
of said payment device detecting, via said online-capable
application, said offline balance of said primarily offline
payment application; and
said topping up step comprises:
responsive to detection of said offline balance of
said primarily offline payment application as requiring
said topping up of said offline balance, establishing on-
line communication, via said at least one processor of
said payment device executing said online-capable
application; and
obtaining, via said at least one processor of said
payment device executing said online-capable
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application, said topping up of said offline balance of
said primarily offline payment application.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Binder
Carper
US 2004/0230535 A1
WO 01/39427 A1
Nov. 18, 2004
May 31, 2001

“Frequently Asked Questions Regarding the EZ-Pass from the Main
Turnpike,” Dec. 5, 2005,
http://web.archive.org/web/20041205031653Ihttp://www.ezpassmaineturnpi
ke.com/info/faqs.html July 30, 2009.

REJECTIONS
The following rejection is before us for review:
The Examiner rejected claims 2, 4, 5, 7, 11, 14-21, 24, and 25 under
35 U.S.C. § 103(a) over Carper, Binder and EZ-Pass.

ISSUE
At issue is whether the combination discloses topping up said offline
balance substantially contemporaneously with a separate online transaction
between said payment device and a terminal, since Binder discloses its
offline balance is topped up upon request, and EZ-Pay automatically
replenishes a balance immediately because it has access to credit card
servers.
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FINDINGS OF FACT
We find the following facts by a preponderance of the evidence.
1. Carper discloses a smart card with memory containing two separate
applications that may cooperate, stating, “[t]he present invention
provides a mechanism by which one application may call another
application on the smart card. The present invention further provides a
mechanism by which smart card applications may securely exchange
information.” (p. 9 ll. 6-8).
2. Carper discloses “a smart card system and method which effectively
allow multiple applications to be run simultaneously and in cooperation
one with another.” (p. 6 ll. 2-3).
3. Carper discloses an application may be an offline application that
merely communicates with a terminal, in that the “term ‘application’
generally refers to any programming code stored in the smart card
which is capable of any independent functionality. Smart card
applications typically respond to one or more commands from a
terminal, and may implement a vast range of functions and processes.”
(p. 8 ll. 16-19).
4. Carper discloses its “‘smart card’ should be broadly read as
encompassing any self-contained combination of microprocessor and
memory element capable of performing a transaction with another
device. This other device is referred to as a terminal.” (p. 8 ll. 13-15).
5. Carper discloses applications that are on-line capable applications, with
one example of “a first application the smart card is used as debit card
to the checking account, and by means of a second application as a user
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authentication device to access the investment account.” (p. 8 ll. 28-
30).
6. Carper discloses persistently storing data on a smart card, in that
“objects stored in read/write memory 10 are persistent in memory when
power is removed from the smart card.” (p. 9 ll. 18-20).
7. Carper discloses persistent stored data on a smart card used by an
application on the smart card, stating, “[w]hen installed, some
applications create related data objects which are stored in read/write
memory. In the illustrated example of Figure 3, Al and A2 are such
data objects.” (p. 9 ll. 30-31).
8. Binder discloses “a transaction card to make purchases at a point of sale
(‘POS’) terminal using a preauthorized amount, defined as an amount or
value which the cardholder can use which is ‘pre-authorized’ or does
not have to be subject to an on-line authorization request ...” (para.
[0029]).
9. Binder discloses a stored balance on a smart card, in “memory unit 250
[which] includes the payment application, the pre-authorized balance
field, the preauthorized limit field, and the like.” (para. [0041]).
10. Binder discloses topping up an offline balance by request, stating, a
“card holder can utilize any of the kiosk-type terminal 410, the
computer 470, the PDA 480, the mobile device 490 and a POS terminal
to request an increase or decrease in the pre-authorized amount.” (para.
[0050]).
11. EZ-Pass discloses a system to initiate an electronic toll payment without
conducting an on-line transaction, using the EZ-Pass tag and related
systems. (“What is E-ZPass?” on p. 2).
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12. EZ-Pass discloses a payment balance can be “automatically replenished
whenever you balance falls below a pre-established level. You never
have to worry about running short on funds.” (“How will I replenish
my EZ-Pass Personal Account prepaid balance?”).
13. Carper discloses multiple applications having access to the same data
stored on the smart card, stating “[s]o long as the ownership byte
associated with a data object allows, any application may access the
data object.” (p. 13 ll. 23-24).
14. Binder discloses an option for multiple applications stored on an
integrated circuit (“IC”) card, in that “[i]n addition to the basic services
provided by the operating system, memory unit 250 may also include
one or more IC card applications.” (para. [0040]).
15. Carper discloses application identifiers in “file directory 20 [which] is a
list (or linked set of lists) identifying every data object stored in
read/write memory 10.” (p. 9 ll. 17-18).
16. Carper discloses storing multiple applications in shared memory 10,
stating, “Figure 3 assumes two applications (A and B) are stored in
read/write memory 10.” (p. 9 ll. 22-23).

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ANALYSIS
Claims 2 and 4
The rejection is affirmed as to independent claim 2. Appellants do not
provide a substantive argument as to the separate patentability of claim 4
that depends from claim 2. Therefore, we address only claim 2, and claim 4
falls with claim 2. See, 37 C.F.R. § 41.37(c)(1)(vii).
Appellants argue that the combination of Carper, Binder, and EZ-Pass
fail to disclose every limitation of claim 2, arguing, “Carper is silent as to
including in the memory an on-line capable application and a primarily
offline payment application having an offline balance, and is also silent as to
any cooperation between such applications.” (Appeal Br. 17).
We are not persuaded by Appellants' argument, because the
combination discloses these features, but Appellants are attacking the
reference individually when the rejection is based on a combination of
references. See In re Keller, 642 F.2d 413, 426 (CCPA 1981).
To these ends, we find that Carper discloses a memory that holds two
or more separate application programs “by which one application may call
another application on the smart card” and “exchange information” (FF 1).
These applications are part of a system and method “which effectively allow
multiple applications to be run simultaneously and in cooperation with one
another.” (FF 2).
We find that Carper further discloses a smart card with a stored
program that is an offline application in that it need only communicate with
a local terminal (FF 3, 4) and stored applications that are on-line in that they
communicate with remote financial servers (FF 5). Carper discloses
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capability of storing persistent data on a smart card (FF 6) and discloses that
such data is related to an application stored on the card (FF 7).
While Carper does not explicitly disclose that the content of that data
may be a monetary balance, we find that Binder discloses a smart card for
offline financial transactions (FF 8) having a memory unit 250 that “includes
the payment application, the pre-authorized balance field, the preauthorized
limit field, and the like.” (FF 9). We find with the Examiner that it would
have been obvious to install Binder’s offline application with associated
stored balance onto the multi-application card of Carper, because it would
permit a “flexible, configurable and controllable” (Ans. 4) application for
offline payment. We also find the combination reasonable because it would
yield predictable results and because Carper and Binder address common
problems in smart card payment systems (FF 5, 8).
Appellants next argue the “EZ-Pass device is not a payment device as
claimed and has neither an on-line capable application nor a primarily
offline payment application ....” (Appeal Br. 17).
We are not persuaded by Appellants' argument, because, as above,
Appellants are attacking the reference individually when the rejection is
based on a combination of references. Id. We find first that Binder
discloses topping up an offline balance at any of several devices to which the
smart card is connected such that the card holder can “request an increase or
decrease in the pre-authorized amount[/balance].” (FF 10). Binder thus
relies on the card holder to make a request to increase a balance amount.
We next find, however, that EZ-Pass discloses an automatically
replenishable payment system using a remote device that can initiate an
electronic toll payment, at the EZ-Pass unit. (FF 11). Key to this disclosure
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is that rather than requiring a user to request a balance increase, EZ-Pass
discloses a balance is “automatically replenished whenever you[r] balance
falls below a pre-established level”. (FF 12). We therefore find the
combination of Binder and EZ-Pass meet the claim requirement to top up
said value of said offline balance, if said offline balance requires topping up.
EZ-Pass is thus relied upon merely to disclose the concept of providing an
automatic topping up step in combination with Binder’s disclosure of
topping up an offline balance of a smart card (Ans. 4).
Appellants next argue, “the EZ-Pass device merely reports its
position, it is incapable of making any kind of transaction, and it can be
stated a fortiori that it cannot make the claimed separate online transaction
...” (Appeal Br. 18). Additionally, Appellants argue there is nothing “in EZ-
Pass that requires the replenishment to be substantially contemporaneous
with any other transaction.” (Appeal Br. 18).
We are not persuaded by Appellants' arguments for the following
reasons. First, we find EZ-Pass discloses replenishing “whenever you[r]
balance falls below a pre-established level” (FF 12). In the case of off line
payment cards as disclosed by Carper (FF 3) and Binder (FF 8) which have
on line capabilities (FF 5, 10), the off line payment card would need to
connect on-line to obtain the money needed to maintain the required
threshold. We find it obvious that the occasion to do so would be at the time
the next on-line transaction occurs when on-line channels are open not only
for the involved transaction but for the topping off process as well. “When
there is a design need or market pressure to solve a problem and there are a
finite number of identified, predictable solutions, a person of ordinary skill
in the art has good reason to pursue the known options within his or her
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technical grasp. If this leads to the anticipated success, it is likely the product
not of innovation but of ordinary skill and common sense.” KSR Int'l. Co. v.
Teleflex Inc., 550 U.S. 398, at 402-403 (2007).
Appellants argue, as to the detecting step comprises and topping up
step comprises requirements, is an improper rejection because Carper
discloses “initializing” applications, but the “initialization in Carper thus
does not appear to have anything to do with conducting the claimed
separate online transaction ...” (Appeal Br. 18-19).
We are not persuaded by Appellants' argument because the
initialization step in Carper causes an application to receive the next
command from a terminal, and thus causes an on-line transaction to occur
for that application (FF 5).
The Examiner cited to Binder as disclosing “an online transaction and
a separate second transaction to top up the balance of the offline application”
(Ans. 4), but Appellants argue Binder “requires an affirmative request to
increase or decrease the pre-authorized amount while 0062-0063 of Binder
simply describes updating the pre-authorized amount to reflect the sale”
(Appeal Br. 19).
We are not persuaded by Appellants' argument, which attacks an
individual reference that is part of a combination. We find the skilled
artisan, reading EZ-Pass’s teaching of an automatic balance topping off (FF
12), along with the offline balance of Binder (FF 8-10) and multiple on-line
and offline applications of Carper (FF 2, 3, 5), would recognize that Binder’s
topping off request could be replaced by EZ-Pass’s automated balance
update, when the smart card is capable of on on-line transaction, which is
when a next on-line application takes place. Id. The combination thus
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meets the claim requirements for topping up said offline balance
substantially contemporaneously with a separate online transaction between
said payment device and a terminal and to top up said value of said offline
balance, if said offline balance requires topping up.
Next, Appellants argue, “Binder carries out its steps within a single
transaction using a single application, Binder 0041 ‘the payment
application’ (singular, emphasis added)” (Appeal Br. 19), instead of multiple
applications.
We are not persuaded by Appellants' argument, because we find
Carper discloses multiple applications available on a smart card (FF 1, 2)
which may be an offline (FF 3, 4) and on-line (FF 5), and Binder discloses
that the offline application may have a balance stored on the card. We
additionally find that Binder discloses an option of multiple applications on
a single card (FF 14).
Appellants argue error in the combination of references on the basis of
there being no expectation of success in the combination, because “the
topping up in EZ-Pass is not carried out by the EZ-Pass tag but rather by the
issuing agency. Presumably, such agency has powerful servers ... to
replenish the account.” (Appeal Br. 21-22).
We are not persuaded by Appellants' argument, because we find there
would be a reasonable expectation of success in the combination because
Carper and Binder both disclose methods involving smart cards containing
multiple applications (FF 1, 8), and to implement the EZ-Pass automated
topping off would merely require automating Binder’s request-driven
method to top off a balance (FF 10). It is generally obvious to automate a
known manual procedure or mechanical device. See, Leapfrog Enterprises
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Inc. v. Fisher-Price Inc., 485 F.3d 1157 (Fed. Cir. 2007). For obviousness
under § 103, all that is required is a reasonable expectation of success.
Wyers v. Master Lock Co., 616 F.3d 1231, 1242 (Fed. Cir. 2010).
Appellants next argue error in the combination, because the stated
rationale to combine Carper with Binder, to provide “a more flexible,
configurable and controllable method ...” (Ans. 4) “is a motivation to obtain
the invention of Binder, not the claimed invention” (Appeal Br. 22).
We are not persuaded by Appellants’ argument of error, because we
find the motivation provided by the Examiner was rationale (Ans. 4) in that
the references deal with common problems in smart cards and other remote
payment devices (FF 1, 8, 11) and obtaining “a more flexible, configurable
and controllable method” is reasonable.
Claim 21
Independent claim 21 is argued by reference to claim 2 (Appeal Br.
34). We thus affirm the rejection of claim 21 under the same reasoning set
forth above at claim 2.
Claim 24
Independent claim 24 is argued by reference to claim 2 (Appeal Br.
34). We thus affirm the rejection of claim 21 under the same reasoning set
forth above at claim 2.
Claims 5 and 7
The rejection is affirmed as to independent claim 5. Appellant does
not provide a substantive argument as to the separate patentability of claim 7
that depends from claim 5. Therefore, we address only claim 5, and claim 7
falls with claim 5.
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Appellants argue “the Examiner has not set forth a specific rationale
for the alleged obviousness of the specific claimed limitations” of claim 5,
because the Examiner rejected claim 2 and 5 together, but quoted only claim
language from claim 2. (Appeal Br. 26).
We are not persuaded of error because we find no unobvious
differences in language between claims 2 and 5. In the detecting step
comprises and the topping up step comprises of claim 2, the “terminal”
conducts first and second transactions. In the detecting step comprises and
the topping up step comprises of claim 5, the “payment device” conducts the
two transactions. In almost all on-line or offline transactions, the “payment
device” and terminal/reader are required elements (as shown by the smart
card of Binder and Carper requiring both the smart card and a terminal to
interact (FF 4, 8)). Without both the payment device/smart card and the
terminal/reader, no transaction can take place with this type of scheme (FF
19).
Appellants argue “the requirement is for some teaching, suggestion, or
motivation in the prior art that would have led one of ordinary skill to
modify the prior art reference or to combine prior art reference teachings to
arrive at the claimed invention.” (Appeal Br. 28).
To the extent Appellants seek an explicit suggestion or motivation in
the reference itself, this is no longer the law in view of the Supreme Court’s
recent holding in KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 419 (2007).
The remainder of the arguments directed to claim 5 are identical to
those already addressed above at claim 2. We therefore affirm the rejection
of claim 5 additionally for the same reasons set forth above at claim 2.
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Claim 25
Independent claim 25 is argued by reference to claim 5 (Appeal Br.
35). We thus affirm the rejection of claim 25 under the same reasoning set
forth above at claims 2 and 5.
Claims 11 and 14
Independent claim 11 is argued by reference to independent claim 5.
(Appeal Br. 29). We thus affirm the rejection of claim 25 under the same
reasoning set forth above at claims 2 and 5. Appellants do not provide a
substantive argument as to the separate patentability of claim 14 that
depends from claim 11.
Claim 15
Claim 15 depends from apparatus claim 11, and recites, inter alia:
said online-capable application comprises a first
application identifier, a shared firmware implementation, and
an online data set;
said primarily offline payment application comprises a
second application identifier, said shared firmware
implementation, and an offline data set; and
data indicative of a value of said offline balance is shared
by said online-capable application and said primarily offline
payment application.
Appellants argue, the “Examiner does not appear to have stated where
the specific claimed features are found in the broad citation of figures 1-3, 5,
and related text, nor does the Examiner appear to have stated a rationale as
to why the broad disclosure therein of sharing data between applications on
a smart card renders the specific claimed limitations obvious.” (Appeal Br.
30).
We are not persuaded by Appellants’ argument because we find that
the Examiner’s reference to Carper by virtue of the Figures and related text
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is sufficient to support a prima facie case. Accordingly, we find Carper
discloses a first application identifier and second application identifier at the
directory 20 (FF 15). We next find Carper discloses a shared firmware
implementation, online data set, and offline data set at memory 10, in which
stores applications (FF 16) and data (FF 17). We find Carper discloses data
in memory is shared (FF 13), and finally find Binder discloses that stored
data is indicative of a value of said offline balance (FF 9), thus meeting all
claim requirements.
Claim 16
Claim 16 depends from apparatus claim 11, and recites, inter alia:
said online-capable application comprises a first
application identifier, an online-capable application firmware
implementation, an online counter, and an online data set;
said primarily offline payment application comprises a
second application identifier, a primarily offline payment
application firmware implementation, an offline counter, and an
offline data set; and
said offline counter comprises data indicative of a value
of said offline balance, said offline counter being visible to said
online-capable application.
Appellants’ argument is similar to that advanced for claim 15.
(Appeal Br. 31).
Accordingly, we affirm the rejection of claim 16 for reasons
substantially similar to those set forth above at claim 15 finding the
counter/balance is visible to said online-capable application because Carper
discloses access to data from multiple applications (FF 13), the online-
capable application firmware implementation at the online application (FF
5), and primarily offline payment application firmware implementation (FF
3), also disclosed by Binder (FF 8).
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Claim 17
Claim 17 depends from apparatus claim 11, and recites, inter alia:
said online-capable application comprises a first
application identifier, an online-capable application firmware
implementation, and an online data set;
said primarily offline payment application comprises a
second application identifier, a primarily offline payment
application firmware implementation, and an offline data set;
and
data indicative of a value of said offline balance is shared
by said online-capable application and said primarily offline
payment application.
Appellants’ argument is similar to that advance for claim 15. (Appeal
Br. 31-32).
We affirm the rejection of claim 17 for reasons substantially similar to
those set forth above at claim 15, and because the primary difference is the
omission of the counter that comprises data indicative of a value of said
offline balance, along with the shared memory (FF 13).
Claim 18
Claim 18 depends from apparatus claim 11, and recites, inter alia:
said online-capable application comprises a first
application identifier, a shared firmware implementation, an
online counter, and an online data set;
said primarily offline payment application comprises a
second application identifier, said shared firmware
implementation, an offline counter, and an offline data set; and
said offline counter comprises data indicative of a value
of said offline balance, said offline counter being visible to said
online-capable application.
Appellants’ argument is similar to that advance for claim 15. (Appeal
Br. 32).
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We affirm the rejection of claim 18 for reasons substantially similar to
those set forth above at claim 15, and since the primary difference is the
inclusion of the counter that comprises data indicative of a value of said
offline balance, along with the shared memory (FF 13).
Claim 19
Claim 19 depends from claim 18, and recites, inter alia, “said online
counter and said online data set reside in a first memory space; and said
offline counter and said offline data set reside in a second memory space.”
Appellants’ argument is similar to that advance for claim 15. (Appeal
Br. 33).
We are not persuaded by Appellants' argument for reasons
substantially similar to those set forth above at claim 15, and because we
find Carper discloses a first memory space at A1 and a second memory space
at A2 (FF 7, 17).
Claim 20
Claim 20 depends from claim 18, and recites, inter alia, “wherein said
online counter, said online data set, said offline counter, and said offline data
set reside in a shared memory space.” (Appeal Br. 34).
We are not persuaded by Appellants' argument for reasons
substantially similar to those set forth above at claim 15, and because we
find Carper discloses a shared memory space at read/write memory 10 (FF
6, 13, 17, 18).

CONCLUSION OF LAW
The Examiner did not err in rejecting claims 2, 4, 5, 7, 11, 14-21, 24,
and 25 under 35 U.S.C. § 103(a) over Carper, Binder, and EZ-Pass.
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DECISION
For the above reasons, the Examiner’s rejection of claims 2, 4, 5, 7,
11, 14-21, 24, and 25 is AFFIRMED.

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

AFFIRMED

MP